UPON hearing the counsel the Court made the followingO R D E RWe have heard Mr. Abhinav Srivastav, learned counsel for the petitioner and Mr. Mukul Rohatgi, learned Attorney General for India along with Mr. A.K. Panda, learned senior counsel for the Union of India.

This Court on 28.10.2016 while entertaining the Writ Petition under Article 32 of the Constitution of India had noted the submissions advanced by the learned counsel for the petitioner, made reference to the enactment, namely, Prevention of Insults to National Honour Act, 1971. It had also taken note of the averments in the petition.

It has been averred in the petition that sometimes National Anthem is sung in various circumstances which are not permissible and can never be countenanced in law. The emphasis is on showing requisite and necessary respect when the National Anthem is sung or played. The assertion is that it is the duty of every person to show respect when the National Anthem is played or recited or sung.

Having heard the learned counsel for the parties and awaiting the reply from the Union of India, as an interim measure, it is directed that the following directions shall be scrupulously followed:- (a) There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.

(b) There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.

(c) National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.

(d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem. (e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

(f) When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.

(g) The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.

We have so directed as Mr. Mukul Rohtagi, learned Attorney General for India submits with all humility at his command and recommend that National Anthem has to be respected. The directions are issued, for love and respect for the motherland is reflected when one shows respect to the National Anthem as well as to the National Flag. That apart, it would instill the feeling within one, a sense committed patriotism and nationalism.

In this regard, we may refer to clause (a) of Article 51(A), Fundamental Duties occurring in Part IVA of the Constitution. It reads as follows: “51A. Fundamental duties – It shall be the duty of every citizen of India – (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”.

From the aforesaid, it is clear as crystal that it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution. And one such ideal is to show respect for the National Anthem and the National Flag. Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible.

Mr. Rohatgi has submitted that the Union of India shall circulate this order to the Chief Secretaries of all the States and Union Territories. That apart, Mr. Rohatgi submits that the order shall be shown in the electronic Media and published in the print media so that every one knows that such an order has been passed and follow the same in letter and spirit.

"The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India" is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law - a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said "I do not think that at the present moment the time is ripe in India for me to try to push it through". It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments - which have come and gone - have so far failed to make any effort towards "unified personal law for all Indians". The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of "uniform civil code" for all citizens in the territory of India.

The questions for our consideration are whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continue to be Hindu? Whether the apostate husband would be quilty of the offence under Section 494 of the Indian Penal Code (IPC)?

These are four petitions under Article 32 of the Constitution of India. There are two petitioners in Writ Petition 1079/89. Petitioner 1 is the President of "KALYANI"

- a registered society - which is an organisation working for the welfare of needy-families and women in distress. Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27, 1978. Three children (two sons and a daughter) were born out of the wed-lock. In early 1988, the petitioner was shocked to learn that her husband had solemnised second marriage with one Sunita Narula @ Fathima. The marriage was solemnised after they converted themselves to Islam and adopted Muslim religion. According to the petitioner, conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing the provisions of Section 494, IPC. Jitender Mathur asserts that having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu.

Rather interestingly Sunita alias Fathima is the petitioner in Writ Petition 347 of 1990. She contends that she along with Jitender Mathur who was earlier married to Meena Mathur embraced Islam and thereafter got married. A son was born to her. She further states that after marrying her, Jitender Prasad, under the influence of her first Hindu-wife, gave an undertaking on April 28, 1988 that he had reverted back to Hinduism and had agreed to maintain his first wife and three children. Her grievance is that she continues to be Muslim, not being maintained by her husband and has no protection under either of the personal laws.

Geeta Rani, petitioner in Writ Petition 424 of 1992 was married to Pradeep Kumar according to Hindu rites on November 13, 1988. It is alleged in the petition that her husband used to maltreat her and on one occasion gave her so much beating that her jaw bone was broken. In December 1991, the petitioner learnt that Pradeep Kumar ran away with one Deepa and after conversion to Islam married her. It is stated that the conversion to Islam was only for the purpose of facilitating the second marriage.

Sushmita Ghosh is another unfortunate lady who is petitioner in Civil Writ Petition 509 of 1992. She was married to G.C. Ghosh according to Hindu rites on May 10, 1984. On April 20, 1992, the husband told her that he no longer wanted to live with her and as such she should agree to divorce by mutual consent. The petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and as such the question of divorce did not arise. The husband finally told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated June 17, 1992 from the Qazi indicating that he had embraced Islam. In the writ petition, the petitioner has further prayed that her husband be restrained from entering into second marriage with Vinita Gupta.

Marriage is the very foundation of the civilised society. The relation once formed, the law steps in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist.

Till the time we achieve the goal - uniform civil code for all the citizens of India - there is an open inducement to a Hindu husband, who wants to enter into second marriage while the first marriage is subsisting, to become a Muslim. Since monogamy is the law for Hindus and the Muslim law permits as many as four wives in India, errand Hindu husband embraces Islam to circumvent the provisions of the Hindu law and to escape from penal consequences.

The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the effect of dissolving a Hindu marriage. Conversion to another religion by one or both the Hindu spouses did not dissolve the marriage. It would be useful to have a look at some of the old cases on the subject. In Re Ram Kumari 1891 Calcutta 246 where a Hindu wife became convert to the Muslim faith and then married a Mohammedan, it was held that her earlier marriage with a Hindu husband was not dissolved by her conversion. She was charged and convicted of bigamy under Section 494 of the IPC. It was held that there was no authority under Hindu law for the proposition that an apostate is absolved from all civil obligations and that so far as the matrimonial bond was concerned, such view was contrary to the spirit of the Hindu law. The Madras High Court followed Ram Kumari in Budansa vs. Fatima 1914 IC 697. In Gul Mohammed v. Emperor AIR 1947 Nagpur 121 a Hindu wife was fraudulently taken away by the accused a Mohammedan who married her according to Muslim law after converting her to Islam. It was held that the conversion of the Hindu wife to Mohammedan faith did not ipso facto dissolve the marriage and she could not during the life time of her former husband enter into a valid contract of marriage. Accordingly the accused was convicted for adultery under Section 497 of the IPC.

In Nandi @ Zainab vs. The Crown (ILR 1920 Lahore 440, Nandi, the wife of the complainant, changed her religion and became a Mussalman and thereafter married a Mussalman named Rukan Din. She was charged with an offence under Section 494 of the Indian Penal Code. It was held that the mere fact of her conversion to Islam did not dissolve the marriage which could only be dissolved by a decree of court. Emperor vs. Mt. Ruri AIR 1919 Lahore 389, was a case of Christian wife. The Christian wife renounced Christianity and embraced Islam and then married a Mohomedan. It was held that according to the Christian marriage law, which was the law applicable to the case, the first marriage was not dissolved and therefore the subsequent marriage was bigamous.

In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties. A marriage solemnised under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion.

"The parties were originally Jews bound by the Jewish personal law... The Plaintiff has since been converted to Islam and may in some respects be governed by the Mohammedan Law.. The Defendant is not governed by the Mahommedan Law.. If this were an Islamic country, where the Mahommedan Law was applied to all cases where one party was a Mahommedan, it might be that plaintiff would be entitled to the declaration prayed for. But this is not a Mahommedan country; and the Mahommedan Law is not the Law of the Land.. Now all my opinion, is it the Law of India, that when any person is converted to Islam the Mahommedan Law shall be applicable to him in all his relationships?.. I can see no reason why the Mahommedan Law should be preferred to the Jewish Law in a matrimonial dispute between a Mahommdan and a Jew particularly when the relationship, viz.: marriage, was created under the Jewish Law.. As I stated in a previous case there is no matrimonial law of general application in India. There is a Hindu Law for Hindus, a Mahommedan Law for Mahommedans, a Christian Law for Christians, and a Jewish Law for Jews. There is no general matrimonial law regarding mixed marriages other than the statute law, and there is no suggestion that the statute law is applicable in the present case.. It may be that a marriage solemnised according to Jewish rites may be dissolved by the proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It may be that a marriage solemnised according to Jesish rites may be dissolved by the proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It may be that a marriage solemnised according to Mahommedan Law may be dissolved according to the Mahommedan Law when one of the parties ceases to be a Mahommedan. But I can find no authority for the view that a marriage solemnized according to one personal law can be dissolved according to another personal law simply because one of the two parties has changed his or her religion."Sayeda Khatoon's case was followed with approval by Blagden, J. of the Bombay High Court in Robasa Khanum vs. Khodadad Bomanji Irani 1946 Bombay Law Reporter 864. In this case the parties were married according to Zoroastrian law. The wife became Muslim whereas the husband declined to do so. The wife claimed that her marriage stood dissolved because of her conversion to Islam. The learned Judge dismissed the suit. It would be useful to quote the following observations from the judgment:

"We have, therefore, this position - British India as a whole, is neither governed by Hindu, Mahommedan, Sikh, Parsi, Christian, Jewish or any other law except a law imposed by Great Britain under which Hindus, Mahomedans, Sikhs, Parsis, and all others, enjoy equal rights and the utmost possible freedom of religious observance, consistent in every case with the rights of other people. I have to decide this case according to the law as it is, and there seems, in principle, no adequate ground for holding that in this case Mahomedan law is applicable to a non- Mahomedan.. Do then the authorities compel me to hold that one spouse can by changing his or her religious opinions (or purporting to do so) force his or her newly acquired personal law on a party to whom it is entirely alien and who does not want it? In the name of justice, equity and good conscience, or, in more simple language, of common sense, why should this be possible? If there were no authority on the point I (personally) should have thought that so monstrous an absurdity carried its own refutation with it, so extravagant are the results that follow from it. For it is not only the question of divorce that the plaintiff's contention affects. If it is correct, it follows that a Christian husband can embrace Islam and, the next moment, three additional wives, without even the consent of the original wife."Against the judgment of Blagden, J. appeal was heard by a Division Bench consisting of Sir Leonard Stone, Chief Justice and Mr. Justice Chagla (as the learned Judge then was). Chagla, J. who spoke for the Bench posed the question that arose for determination as under: "what are the consequences of the plaintiff's conversion to Islam?". The Bench upheld the judgment of Blagden, J. and dismissed the appeal. Chagla, J. Chagla, J. elaborating the legal position held as under:-

"We have here a Muslim wife according to whose personal law conversion to Islam, if the other spouse does not embrace the same religion, automatically dissolves the marriage. We have a Zoroastrian husband according to whose personal law such conversion does not bring about the same result. The Privy Council in Waghela Rajsanji v. Shekh Masludin expressed the opinion that if there was no rule of Indian law which could be applied to a particular case, then it should be decided by equity and good conscience, and they interpreted equity and good conscience to mean the rules of English law if found applicable to Indian society and circumstances. And the same view was confirmed by their Lordships of the Privy Council in Muhammad Raza v. Abbas Bandi Bibi. But there is no rule of English law which can be made applicable to a suit for divorce by a Muslim wife against her Zoroastrian husband. The English law only deals and can only deal with Christian marriages and with grounds for dissolving a Christian marriage. Therefore we must decided according to justice and right, or equity and good conscience independently of any provisions of the English law. We must do substantial justice between the parties and in doing so hope that we have vindicated the principles of justice and right or equity and good conscience... It is impossible to accept the contention of Mr. Peerbhoy that justice and right requires that we should apply Muslim law in dealing this case. It is difficult to see why the conversion of one party to a marriage should necessarily afford a ground for its dissolution. The bond that keeps a man and woman happy in marriage is not exclusively the bond of religion. There are many other ties which make it possible for a husband and wife to live happily and contentedly together. It would indeed be a startling proposition to lay down that although two persons may want to continue to live in a married state and disagree as to the religion they should profess, their marriage must be automatically dissolved. Mr. Peerbhoy has urged that it is rarely possible for two persons of different communities to be happily united in wedlock. If conversion of one of the spouses leads to unhappiness, then the ground for dissolution of marriage would not be the conversion but the resultant unhappiness. Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But s.4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renulciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. This is a very clear and emphatic indication that the Indian legislature has departed from; the rigor of the ancient Muslim law and has taken the more modern view that there is nothing to prevent a happy marriage notwithstanding the fact that the two parties to it professed different religious.. We must also point out that the plaintiff and the defendant were married according to the Zoroastrian rites. They entered into a solemn pact that the marriage would be monogamous and could only be dissolved according to the tenets of the Zoroastrian religion.It would be patently contrary to justice and right that one party to a solemn pact should be allowed to repudiate it by a unilateral act. It would be tantamount to permitting the wife to force a divorce upon her husband although he may not want it and although the marriage vows which both of them have taken would not permit it. We might also point out that the Shariat Act (Act XXVI of 1937) provides that the rule of decision in the various cases enumerated in s.2 which includes marriage and dissolution of marriage shall be the Muslim personal law only where the parties are Muslims; it does not provide that the Muslim personal law shall apply when only one of the parties is a Muslim." (the single Judge judgment and the Division Bench judgment are reported in 1946 Bombay Law Reporter 864) In Andal Vaidyanathan vs. Abdul Allam Vaidya 1946 Madras, a Division Bench of the High Court dealing with a marriage under the Special Marriage Act 1872 held:

"The Special Marriage Act clearly only contemplates monogamy and a person married under the Act cannot escape from its provisions by merely changing his religion. Such a person commits bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage. Section 17 provides the only means for the dissolution of a marriage or a declaration of its nullity.Consequently, where two persons married under the Act subsequently become converted to Islam, the marriage can only be dissolved under the provisions of the Divorce Act and the same would apply even if only one of them becomes converted to Islam. Such a marriage is not a marriage in the Mahomoden sense which can be dissolved in a Mahomedan manner. It is a statutory marriage and can only be dissolved in accordance with the Statute: ('41) 28 A.I.R.1941 Cal. 582 and (1917) 1 K.B. 634, Rel. on; ('35) 22 A.I.R. 1935 Bom. 8 and 18 Cal. 264, Disting."It is, thus, obvious from the catena of case-low that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so. Where a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu. We, therefore, hold that under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage.

The position has not changed after coming into force of the Hindu Marriage Act, 1955 (the Act) rather it has become worse for the apostate. The Act applies to Hindus by religion in any of its forms or developments. It also applies to Buddhists, Jains and Sikhs. It has no application to Muslims, Christians and Parsees. Section 4 of the Act is as under:

"Overriding effect of Act. save as otherwise expressly provided in this Act,-(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act."A marriage solemnised, whether before or after the commencement of the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. One of the grounds under Section 13 (i) (ii) is that "the other party has ceased to be a Hindu by conversion to another religion". Sections 11 and 15 of the Act is as under:-

"Void marriages:- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5."

"Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, of there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again."

It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. A marriage performed under the Act cannot be dissolved except on the grounds available under section 13 of the Act. In that situation parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife. A second marriage by an apostate under the shelter of conversion to Islam would nevertheless be a marriage in violation of the provisions of the Act by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion to Islam. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be nonest. Section 494 Indian Penal Code is as under:-

"Marrying again during lifetime of husband or wife. Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.The necessary ingredients of the Section are: (1) having a husband or wife living; (2) marries in any case; (3) in which such marriage is void; (4) by reason of its taking place during the life of such husband or wife.

It is no doubt correct that the marriage solemnised by a Hindu husband after embracing Islam may not be strictly a void marriage under the Act because he is no longer a Hindu, but the fact remains that the said marriage would be in violation of the Act which strictly professes monogamy.

The expression "void" for the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning within the scope of the definition under the Section. On the other hand the same expression has a different purpose under Section 494, IPC and has to be given meaningful interpretation.

The expression "void" under section 494, IPC has been used in the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494, IPC.

A Hindu marriage solemnised under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494, IPC. Any act which is in violation of mandatory provisions of law is per-se void.

The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-bye to the substance of the matter and acting against the spirit of the Statute if the second marriage of the convert is held to be legal.

We also agree with the law laid down by Chagla, J. in Robasa Khanum vs. Khodabad Irani's case (supra) wherein the learned Judge has held that the conduct of a spouse who converts to Islam has to be judged on the basis of the rule of justice and right or equity and good conscience. A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute "where the parties are Muslims" and, therefore, the rule of decision in such a case was or is not required to be the "Muslim Personal Law". In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC.

Looked from another angle, the second marriage of an apostate-husband would be in violation of the rules of natural justice. Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void.

The interpretation we have given to Section 494 IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. Result of the interpretation, we have given to Section 494 IPC, would be that the Hindu Law on the one hand and the Muslim Law on the other hand would operate within their respective ambits without trespassing on the personal laws of each other. Since it is not the object of Islam nor is the intention of the enlighten Muslim community that the Hindu husbands should be encouraged to become Muslims merely for the purpose of evading their own personal laws by marrying again, the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law.

All the four ingredients of Section 494 IPC are satisfied in the case of a Hindu husband who marries for the second time after conversion to Islam. He has a wife living, he marries again. The said marriage is void by reason of its taking place during the life of the first wife.

We, therefore, hold that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC.

We may at this stage notice the Privy Council judgment in Attorney General Ceylon vs. Reid (1965 Al. E.R. 812). A Christian lady was married according to the Christian rites. Years later she embraced Islamic faith and got married by the Registrar of Muslim Marriages at Colombo according to the statutory formalities prescribed for a Muslim marriage. The husband was charged and convicted by the Supreme Court, Ceylon of the offence of bigamy under the Ceylon Penal Code. In an appeal before the Privy Council, the respondent was absolved from the offence of bigamy. It was held by Privy Council as under :-

"In their Lordship's view, in such countries there must be an inherent right in the inhabitants domiciled there to change their religion and personal law and so to contract a valid polygamous marriage if recognised by the laws of the country notwithstanding an earlier marriage. It such inherent right is to be abrogated, it must be done by statute."Despite there being an inherent right to change religion the applicability of Penal laws would depend upon the two personal laws governing the marriage. The decision of Privy Council was on the facts of the case, specially in the background of the two personal laws operating in Ceylon. Reid's case is, thus, of no help to us in the facts and legal background of the present cases.

Coming back to the question "uniform civil code" we may refer to the earlier judgments of this Court on the subject. A Constitution Bench of this Court speaking through Chief Justice Y.V. Chandrachud in Mohd. Ahmed Khan vs. Shah Bano Begum AIR 1985 SC 945 held as under:

"It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made is the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge that gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case."In Ms. Jordan Diengdeh vs. S.S. Chopra AIR 1985 SC 935 O. Chinnappa Reddy, J. speaking for the Court referred to the observations of Chandrachud, CJ in Shah Bano Begum's case and observed as under:

"It was just the other day that a Constitution Bench of this Court had to emphasise the urgency of infusing life into Art. 44 of the Constitution which provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." The present case is yet another which focuses .. on the immediate and compulsive need for a uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of a uniform civil code is exposed by the facts of the present case. Before mentioning the facts of the case, we might as well refer to the observations of Chandrachud, CJ in the recent case decided by the Constitution Bench (Mohd. Ahmed Khan vs. Shah Bano Begum)."One wonders how long will it take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu law - personal law of the Hindus - governing inheritance, succession and marriage was given go- bye as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country.

Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus alongwith Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a "common civil Code" for the whole of India.

It has been judicially acclaimed in the United States of America that the practice of Polygamy is injurious to "public morals", even though some religion may make it obligatory or desirable for its followers. It can be superseded by the State just as it can prohibit human sacrifice or the practice of "Suttee" in the interest of public order. Bigamous marriage has been made punishable amongst Christians by Act (XV of 1872), Parsis by Act (III of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV of 1955).

Political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus was concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Mahomedans. The 1772 Regulations followed by the Regulations of 1781 whereunder it was prescribed that either community was to be governed by its "personal" law in matters relating to inheritance, marriage, religious usage and institutions. So far as the criminal justice was concerned the British gradually superseded the Muslim law in 1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the British regime until independence and the territory of India was partitioned by the British Rulers into two States on the basis of religion. Those who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation - Indian nation - and no community could claim to remain a separate entity on the basis of religion. It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. The Legislation - not religion - being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India.

The Successive Governments till-date have been wholly re-miss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India.

We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and "endeavour to secure for the citizens a uniform civil code throught the territory of India".

We further direct the Government of India through Secretary, Ministry of Law and Justice to file an affidavit of a responsible officer in this Court in August, 1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a "uniform civil code" for the citizens of India. Sahai, J. in his short and crisp supporting opinion has suggested some of the measures which can be undertaken by the Government in this respect.

Answering the questions posed by us in the beginning of the judgment, we hold that the second marriage of a Hindu- husband after conversion to Islam, without having his first marriage dissolved under law, would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC and the apostate-husband would be guilty of the offence under Section 494 IPC.

The question of law having been answered we dispose of the writ petitions. The petitioners may seek any relief by invoking any remedy which may be available to them as a result of this judgment or otherwise. No costs. Smt. Sarla Mudgal, President Kalyani & Ors. etc. etc. Vs.

Union of India & Ors.

J U D G M E N T R.M. SAHAI, J.

Considering senstivity of the issue and magnitude of the problem, both on the desirability of a uniform or common civil code and its feasibility, it appears necessary to add a few words to the social necessity projected in the order proposed by esteemed Brother Kuldip Singh, J. more to focus on the urgency of such a legislation and to emphasise that I entirely agree with the thought provoking reasons which have been brought forth by him in his order clearly and lucidly.

The pattern of debate, even today, is the same as was voiced forcefully by the members of the minority community in the Constituent Assembly. If, `the non-implementation of the provisions contained in Article 44 amounts to grave failure of Indian democracy' represents one side of the picture, then the other side claims that, `Logical probability appears to be that the code would cause dissatisfaction and disintegration than serve as a common umbrella to promote homogeneity and national solidarity'.

When Constitution was framed with secularism as its ideal and goal, the consensus and conviction to be one, socially, found its expression in Article 44 of the Constitution. But religious freedom, the basic foundation of secularism, was guaranteed by Articles 25 to 28 of the Constitution. Article 25 is very widely worded. It guarantees all persons, not only freedom of conscience but the right to profess, practice and propagate religion. What is religion? Any faith or belief. The Court has expanded religious liberty in its various phases guaranteed by the Constitution and extended it to practices and even external overt acts of the individual. Religion is more than mere matter of faith. The Constitution by guaranteeing freedom of conscience ensured inner aspects of religious belief. And external expression of it were protected by guaranteeing right to freely, practice and propagate religion. Reading and reciting holy scriptures, for instance, Ramayana or Quran or Bible or Guru Granth Sahib is as much a part of religion as offering food to deity by a Hindu or bathing the idol or dressing him and going to a temple, mosque, church or gurudwara.

Marriage, inheritance, divorce, conversion are as much religious in nature and content as any other belief or faith. Going round the fire seven rounds or giving consent before Qazi are as much matter of faith and conscience as the worship itself. When a Hindu becomes convert by reciting Kalma or a Mulsim becomes Hindu by reciting certain Mantras it is a matter of belief and conscience. Some of these practices observed by members of one religion may appear to be excessive and even violative of human rights to members of another. But these are matters of faith. Reason and logic have little role to play. The sentiments and emotions have to be cooled and tempered by sincere effort. But today there is no Raja Ram Mohan Rai who single handed brought about that atmoophere which paved the way for Sati abolition. Nor is a statesman of the stature of Pt. Nehru who could pilot through, successfully, the Hindu Succession Act and Hindu Marriage Act revolutionising the customary Hindu Law. The desirability of uniform Code can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.

The problem with which these appeals are concerned is that many Hindus have changed their religion and have become convert to Islam only for purposes of escaping the consequences of bigamy. For instance, Jitendra Mathur was married to Meena Mathur. He and another Hindu girl embraced Islam. Obviously because Muslim Law permits more than one wife and to the extent of four. But no religion permits deliberate distortions. Much misapprehension prevails about bigamy in Islam. To check the misuse many Islamic countries have codified the personal Law, `Wherein the practice of polygamy has been either totally prohibited or severely restricted. (Syria, Tunisia, Morocco, Pakistan, Iran, the Islamic Republics of the Soviet Union are some of the Muslim countries to be remembered in this context'. But ours is a Secular Democratic Republic. Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fibre. `But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression'. Therefore, a unified code is imperative both for protection of the oppressed and promotion of national unity and solidarity. But the first step should be to rationalise the personal law of the minorities to develop religious and cultural amity. The Government would be well advised to entrust the responsibility to the Law Commission which may in consultation with Minorities Commission examine the matter and bring about the comprehensive legislation in keeping with modern day concept of human rights for women.

The Government may also consider feasibility of appointing a Committee to enact Conversion of Religion Act, immediately, to check the abuse of religion by any person. The law may provide that every citizen who changes his religion cannot marry another wife unless he divorces his first wife. The provision should be made applicable to every person whether he is a Hindu or a Muslim or a Christian or a Sikh or a Jain or a Budh. Provision may be made for maintenance and succession etc. also to avoid clash of interest after death.

This would go a long way to solve the problem and pave the way for a unified civil code.

Smt. Sarla Mudgal, President Kalyani and Ors.

Vs.

Union of India & Ors.

(W.P. (C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92).

O R D E R For the reasons and conclusions reached in separate but concurring judgments the Writ petitions are allowed in terms of the answers to the questions posed in the opinion of Kuldip Singh, J.

1. I have read the judgment which my learned brother is about to deliver and I am in entire agreement with it and have nothing to add.

Chagla, J.

2. This is an appeal from the judgment of Mr. Justice Blagden. The suit was filed by a Muslim woman against her Zoroastrian husband for dissolution of marriage. The parties were married in 1927 in Iran according to the Zoroastrian law. In the plaint as originally filed the only ground on which a decree for dissolution of marriage was sought was desertion of the plaintiff by the defendant. The plaint was subsequently amended and a further ground was alleged, namely, that the plaintiff had ceased to be a Zoroastrian and had become a Muslim and that the defendant had declined to become a Muslim and was still continuing to be a Zoroastrian. It was therefore submitted that the plaintiff's marriage with the defendant was dissolved and a declaration was sought to that effect. The suit proceeded ex parie before Mr. Justice Blagden, and the learned Judge dismissed the suit.

3. The plaintiff's allegation with regard to desertion may be briefly dealt with. The learned Judge who had the advantage of seeing the plaintiff in the witness-box has refused to believe her on this point and has come to the conclusion that the charge of desertion was not well-founded. We see no reason on this question of fact to take a different view from that taken by the learned Judge below.

4. The more difficult and the more interesting question that arises for determination is: what are the consequences of the plaintiff's conversion to Islam? Muslim law makes a distinction between conversion to Islam of one of the spouses talcing place in a country subject to the laws of Islam and in a country where the law of Islam is not the law of the land. fIn the first ease, when one of the parties embraces Islam, he or she must offer Islam to the other spouse; and if the latter refuses to adopt Islam, then the Judge should separate the couple. In the latter case, after the lapse of a period of three months after the adoption of Islam by one of the parties, the marriage is automatically dissolved. It is not possible to take the view that India is a country subject to the laws of Islam. It is true that the Courts in British India administer the Muslim law as altered and amended by statute law to Muslim parties. But the Courts of Jaw do so pursuant to the directions contained in the laws of India. Complete religious neutrality obtains in our country and our Courts administer laws irrespective of the creed of the parties who appear before them. The Courts do not administer the laws of any particular community, but they administer such laws as are valid in British India. Muslim law is administered only in those cases where it happens to be the law of British India in eases where the parties are Muslims.

5. Therefore this country not being an Islamic country, according to the Muslim law, three months after the conversion of the plaintiff, if the defendant did not embrace Islam the marriage would stand dissolved. In this case there is no dispute that the plaintiff was converted to Islam, that the requisite period had passed and that the defendant has not adopted the religion of Islam.

6. It is clear that on the plaintiff's conversion to ilslam her personal law by which she is governed became the Muslim law and therefore, as far as her own personal law is concerned, it is undoubtedly true that she is entitled to have a declaration that her marriage stands dissolved. If this were to be a case in which Muslim law was to be administered, then, the case would present no difficulty whatsoever. But the difficulty arises because the defendant is a Zoroastrian and his personal law happens to be different from that of the plaintiff. Therefore we have here a case where there is a conflict between the personal laws of the two parties to the suit. The question of the domicile of the parties which would have a decisive bearing upon the question if the case were to be tried in English Courts does not help us here. It has been established that both the parties are domiciled in British India, but in British India there is no such thing as the law of domicile or a territorial law. In matrimonial matters there is no one law which applies to persons domiciled in British India; they are governed by their personal laws which differ from community to community. When the Supreme Court was established, this difficulty was foreseen, and by Clause 24 of the Charter it was provided that in the eases of Mahomedans or Gentoos (Hindus), their inheritance and succession to lands, rents and goods, and all matters of contract and dealing between party and party, shall be determined, in the case of the Mahomedans, by the laws and usages of the Mahoraedans, and where the parties are Gentoos, by the laws and usages of the Qentoos, or by such laws and usages as the same would have been determined by if the suit had been brought and the action commenced in a native Court, and where one of the parties shall be a Mahomedan or Gentoo, by the laws and usages of the defendant. The same provision, with this difference that it; applied to all communities instead of being confined to Hindus and Muslims, found a place in the Government of India Act, 1915, Section 112; and in the Government of India Act of 1935, Section 223 provides that the law to be administered in the High Court shall be the same as was administered before the Act came into force. It has been urged by Mr. Forbes on behalf of the respondent that in this case we should apply the law of the defendant because the case falls within the classes of cases enumerated in Section 112 of the Government of India Act of 1915, It is contended that marriage is a contract, that parties entered into the contract of marriage, that one party is seeking to repudiate the contract and that as the two parties belong to different communities their rights should be administered according to the law of the defendant. We find it difficult to accept this contention. It is difficult to believe that Parliament wanted to include matrimonial matters in the compendious expression "matters of contract and dealing between party and party." If Parliament intended to invest the High Court with matrimonial jurisdiction, Parliament would have made use of a more appropriate expression. Therefore in our opinion it is not possible to obtain any guidance as to the law which we should administer from Section 112 of the Government of India Act of 1915. Mr. Justice Crump in Benjamin v. Benjamin (1925) 28 Bom. L.R. 328 also expressed a doubt whether the words used in Section 112 of the Government of India Act of 1915 cover a matrimonial suit.

7. Clause 28 of the Charter of the Supreme Court contains a general direction that the Courts should give judgment according to justice and right; and Clause 19 of the Letters Patent provides that the High Court, in the exercise of its ordinary original civil jurisdiction, should apply to each case such law or equity as would have applied by the High Court if the Letters Patent had not been passed, Therefore in cases which do not fall within the ambit of Section 112 of the Government of India Act of 1915, and where there is no other statutory provision, the Court can only decide the case according to justice and right.

8. If parties appearing before the Court were governed by the same personal law, it would be easy to say what justice and right was according to which the ease should be decided. Ordinarily it would be according to the personal law of the parties. But a serious difficulty arises when the plaintiff and the defendant have different personal laws and there is a conflict between those personal laws. "We have here a Muslim wife according to whose personal law conversion to Islam, if the other spouse does not embrace the same religion, automatically dissolves the marriage. We have a Zoroastrian husband according to whose personal law such conversion does not bring about the same result. The Privy Council in Waghela Rajsanji v. Shekh Masludin (1887) L.R. 14 I. A. 89, 98 expressed the opinion that if there was no rule of 'Indian law which could be applied to a particular case, then it should be decided by equity and good conscience, and they interpreted equity and good conscience to mean the rules of English law if found applicable to Indian society and circumstances. And the same view was confirmed by their Lordships of the Privy Council in Muhammad Baza v. Abbas Bandi Bibi (1932) L.R. 59 I. A. 286, 246 : s.c. 34 Bom. L.R. 1048. But there is no rule of English law which can be made applicable to a suit for divorce by a Muslim wife against her Zoroastrian husband. The English law only deals and can only deal with Christian marriages and with grounds for dissolving a Christian marriage. Therefore we must decide according to justice and right, or equity and good conscience independently of any provisions of the English law. We must do substantial justice between the parties and in doing so hope that we have vindicated the principles of justice and right or equity and good conscience.

9. It is impossible to accept the contention of Mr. Peerbhoy that justice and right requires that we should apply Muslim law in deciding this case. It is difficult to see why the conversion of one party to a marriage should necessarily afford a ground for its dissolution. The bond that keeps a man and woman happy in marriage is not exclusively the bond of religion. There are many other ties which make it possible for a husband and wife to live happily and contentedly together. It would indeed be a startling proposition to lay down that although two persons may want to continue to live in a married state and disagree as to the-religion they should profess, their marriage must be automatically dissolved. Mr. Peerbhoy has urged that it is rarely possible for two persons of different communities to be happily united in wedlock. If conversion of one of the spouses leads to unhappiness, then the ground for dissolution of marriage would not be the conversion but the resultant unhappiness. Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But Section 4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. This is a very clear and emphatic indication that the Indian legislature has departed from the rigour of the ancient Muslim law and has taken the more modern view that there is nothing to prevent a happy marriage notwithstanding the fact that the two parties to it professed different religions.

10. We might also point out that the plaintiff and the defendant were married according to the Zoroastrian rites. They entered into a solemn pact that the ^marriage would be monogamous and could only be dissolved according to the tenets of the Zoroastrian religion. It would be patently contrary to justice and right that one party to a solemn pact should be allowed to repudiate it by a unilateral act. It would be tantamount to permitting the wife to force a divorce upon her husband although he may not want it and although the marriage vows which both of them have taken would not permit it. We might also point out that the Shariat Act (Act XXVI of 1937) provides that the rule of decision in the various cases enumerated in Section 2 which includes marriage and dissolution of marriage shall be the Muslim personal law only where the parties are Muslims; it does not provide that the Muslim personal law shall apply when only one of the parties is a Muslim.

11. As far as we can see from the cases cited at the Bar, only two High Courts have had occasion to consider this question-the High Court of Calcutta and the High Court of Madras. There have been several conflicting decisions of the Calcutta High Court which we shall briefly review. Mr. Justice Panckridge in an ex parte case made a declaration that the marriage of a Hindu woman who had been converted to Islam stood dissolved. He followed an iinreported decision of Buckland J. to the same effect. (See Musst. Ayesha Bibi v. Bireshwar Ghosh Mazumdar (1929) 83 C. W. N. clxxix). But the judgment contains no reasons which led the learned Judge to come to that conclusion. In Haripada Boy v. Krishna Benode [1989] A. I. R. Cal. 480 the husband, a Hindu, filed a suit for the restitution of conjugal rights against his wife who had been converted to Islam. It seems that she had obtained an ex parte decree for dissolution of her marriage on the ground of her conversion. The husband's suit for the restitution of conjugal rights had been dismissed by the two lower Courts and the matter came in second appeal before the High Court. It was not necessary to decide whether conversion led to dissolution of marriage because the Court expressly decided the appeal on the ground that as the ex parte decree had not been challenged, a suit for the restitution of conjugal rights could not be maintained. In Noor Jehan v. Eugene Tiscenko the wife sued her husband who was a Russian subject for a declaration that her marriage stood dissolved on the ground of her conversion to Islam. Mr. Justice Edg'ley who tried the suit refused to apply the rule of Muslim law stating (p. 594) that it was not the law of India that a marriage which had been duly celebrated according to the lex loci contradus and contemplated a lifelong union, could be dissolved by having recourse to some provision of the personal religious law of one of the parties to the marriage in a case in which the parties belonged to different religious communities. He went to the length of saying that the rule of Mahomedan law, on which the plaintiff relied, must be regarded as obsolete and contrary to public policy. Mr. Justice Edgley dismissed the suit and there was an appeal from his decision. In Noor Jehan Begum v. Eugene Tiseenho [1942] 2 Cal. 165, a bench consisting of Derbyshire C.J. and Ameer Ali and Nasim Ali JJ. confirmed the decision of Mr. Justice Edgley on the ground that as the husband was domiciled in Russia and as the wife took the domicile of her husband, the Court had no jurisdiction to entertain a suit for dissolution of their marriage. It is not necessary for us to go. to the same length as Mr. Justice Edgley went and say that the particular rule of Muslim law on which the plaintiff is relying is obsolete and contrary to public policy, but it is sufficient for us to agree with Mr. Justice Edgley that that rule of Muslim law does not apply where only one of the parties to the suit is a Muslim. Them in Musstt. Ayesha Bihi v. Subodh Chakravarty (1945) 49 C. W. N. 439, Mr. Justice Ormorid had a similar case before him, We agree with Mr. Justice Ormond in his conclusion that the law to be administered in cases like the one before him and the one before us is to administer justice and right; but, with respect, we entirely disagree with him when he comes to the conclusion that justice and right demands that conversion from Hinduism to Islam should put an end to the marriage. In passing we may observe that the learned Judge has taken the same view of Section 112 of the Government of India Act of 1915 as we have done earlier in this judgment. In the same volume of the Calcutta Weekly Notes is also reported a decision of another single Judge of the same High Court, Mr. Justice Lodge, and that learned Judge has dissented from the view taken by Mr. Justice Ormond (Sayed Khaioon v. M, Obediah (1945) 49 C. W. N. 745). The learned Judge took the view that India was not a Mahomedan country and the Mahomedan law was not the law of the land. The learned Judge further observed that he could find no authority for the view that a marriage solemnized according to one persona law could be dissolved according to another personal law simply because one of the two parties had changed his or her religion. He held that it could not be just and right to grant a declaration of dissolution of marriage on the ground of conversion of one of the parties to the marriage to Islam. With respect, we entirely agree with the decision of that learned Judge.

12. The Madras High Court has held in Budansa Bowther v. Fattna Bi (1913) 26 M. L. J. 260 that when a Hindu married woman was converted to Islam and during the lifetime of her Hindu husband married a Mahomedan and had several children by the second marriage, the second marriage was illegal and the children who were born of this union were illegitimate. The Court held that where a conflict occurs between persons belonging to different religions, it must apply the rules of justice, equity and good conscience. The Court further held that in testing whether the first marriage of a Hindu woman with a Hindu husband was subsisting or not at the time of her second marriage with a Muslim after she became a convert to Islam, the principles of Hindu law should be applied; but in testing the validity of her second marriage, the principles of Mahomedan law should be applied.

13. We might also consider another point which was debated at the Bar but which does not present much difficulty. Has the High Court the jurisdiction to try matrimonial suits on the Original Side ? By Clause 42 of the Supreme Court Charter, 1823, the Supreme Court was constituted a Court of Ecclesiastical Jurisdiction; and by Clause 35 of the Letters Patent the High Court has been giver. Matrimonial Jurisdiction. But this jurisdiction is confined to cases where one of the parties professes the Christian religion and it is now regulated by the Indian Divorce Act and the Indian and Colonial Divorce Jurisdiction Act, 1926. A special Court is also set up for deciding matrimonial matters where parties are Parsis under the Parsi Marriage and Divorce Act. The Dissolution of Muslim Marriages Act (VIII of 1939) does not set up any special Court and presumably the cases coming under that Act would be tried on the Original Side. But apart from special legislation and special jurisdiction, the High Courts in India have never refused to give redress in suits concerning matrimonial matters. As far back as 1856, the Privy Council, while holding that a suit for the restitution of conjugal rights could not be maintained on the Ecclesiastical side of the Supreme Court where the parties were Parsis, expressed the opinion that they should much regret if there were no Court and no law whereby a remedy could be administered to the evils which must be incidental to married life. (Ardaseer Cursetjee v. Perozeboye (1850) 6 M. I. A. 348, 390). Clause 12 of the Letters Patent confers original jurisdiction upon the High ¦ Court to try suits of every description, and that expression is wide enough to include in it even matrimonial suits where parties cannot obtain relief by invoking the special Matrimonial Jurisdiction of the High Court. Mr. Justice Crump in Benjamin v. Benjamin (1925) 28 Bom. L.R. 828 entertained a suit for divorce between: Jews on the Original Side under Clause 12 of the Letters Patent, Mr. Justice Crump in that case lias reviewed the cases in which the High Court in its original civil jurisdiction has exercised jurisdiction in matrimonial disputes.

14. We, therefore, hold that the Court has jurisdiction to entertain the suit on the Original Side. We further hold that the law which must be applied is not the Muslim personal law, but we must decide the case according to justice and right. We further hold that it is not in accordance with justice and right that on the conversion of one of the parties to the marriage to Islam it should be held that the marriage stands dissolved.

HEADNOTE:The Bihar Preservation and Improvement of Animals Act ,955,put a total ban on the slaughter of all categories ofanimal,, of the species of bovine cattle. The U. P.Prevention of Cow Slaughter Act, 1955, put a total ban onthe slaughter of cows and her progeny which included bulls,bullocks, heifers and calves. The C. P. and Berar AnimalPreservation Act, 1949, placed a total ban on the slaughterof cows, male or female calves of cow, bulls, bullocks, andheifers and the slaughter of buffaloes (male or female,adults or calves) was permitted only under a certificategranted by the proper authorities. No exception was made inany of these Acts permitting slaughter of cattle even forbona fide religious purposes. These three Acts were enactedin pursuance of the directive principles of State policycontained in Art. 48 Of the Constitution. The petitioners,who were engaged in the butcher's trade and its subsidiaryundertakings, challenged the constitutional validity of thethree Acts on the grounds that they infringed their funda-mental rights guaranteed under Arts. 14, 19(1)(g) and 25 ofthe Constitution. The respondents contended that theimpugned Acts were constitutional and valid as they weremade in consonance with the directive principles of Art- 48which were superior to the fundamental rights and that theimpugned Acts did not offend Art. 14, 19(1)(g) or 25Held, (i) that a total ban on the slaughter of cows of allages and calves of cows and of she-buffaloes, male andfemale, was quite reasonable and valid;(ii)that a total ban on the slaughter of she-buffaloes orbreeding bulls or working bullocks (cattle as well asbuffaloes), as long as they were capable of being used asmilch or draught cattle, was also reasonable and valid; and(iii) that a total ban on the slaughter of she-buffaloes,bulls630and bullocks (cattle or buffalo) after they ceased to becapable of yielding milk or of breeding or working asdraught animals was not in the interests of the generalpublic and was invalid.The directive in Art. 48 for taking steps for preventing theslaughter of animals is quite explicit and positive andcontemplates a ban on the slaughter of the severalcategories of animals specified therein, namely, cows andcalves and other cattle which answer the description ofmilch or draught cattle. The protection is confined only tocows and calves and to those animals which are presently orpotentially capable of yielding milk or of doing work asdraught cattle but does not extend to cattle which at onetime were milch or draught cattle but which have ceased tobe such. The directive principles of State policy set outin Part IV of the Constitution have to conform to and run assubsidiary to the fundamental rights in Part 111.State of Madras v. Smt. Champakam Dorairajan, [1951] S.C.R.525, followed.The ban on the slaughter of cows even on the slaughter daydid not violate the fundamental rights of the petitionersunder Art. 25 as it had not been established that thesacrifice of a cow on that day was an obligatory overt actfor a Mussalman to exhibit his religious belief and idea.Ratilal Panachand Gandhi v. The State of Bombay, [1954]S.C.R. 1055, applied.The impugned Acts which affected only the butchers whoslaughtered cattle and not the butchers who slaughteredsheep or goats, did not offend Art. 14 Of the Constitution.The different categories of animals being susceptible ofclassification into separate groups on the basis of theirusefulness to society, the butchers who kill each categorymay also be placed in distinct classes according to theeffect produced on society by the carrying on of theirrespective occupations. This classification is based on anintelligible differentia which places the petitioners in awell defined class and distinguishes them from those whoslaughter sheep or goats and this differentia has a closeconnection with the object sought to be achieved by the im-pugned Acts, namely, the preservation, protection andimprovement of livestock.In determining the question of the. reasonableness ofrestrictions imposed on the fundamental rights conferred byArt. 19(1)(g) the Court cannot proceed on a general notionof what is reasonable in the abstract or even on theconsideration of what is reasonable from the point of viewof the person or persons on whom the restrictions areimposed. What the Court has to do is to consider whetherthe restrictions imposed are reasonable in the interests ofthe general public. The test of reasonableness has beenlaid down in State of Madras v. I. G. Row, [1952] S.C.R.597 at 602. It should also be remembered that thelegislature631is the best judge of what is good for the community. Thougha constitutional question cannot be decided on the groundsof the sentiment of a section of the people, it has to betaken into consideration, though only as one of theelements, in arriving at a judicial verdict as to thereasonableness of the restrictions.The effect of the impugned Acts on the fundamental rights ofthe petitioners under Art. 19(1)(g) is direct andinstantaneous as soon as the Acts are brought into force,and it has to be determined whether they can be justifiedunder cl. (6) of Art. 19 The country is in short supply ofmilch cattle, breeding bulls and working bullocks, and atotal ban on the slaughter of these which are essential tothe national economy for the supply of milk, agriculturalworking power and manure is a reasonable restriction in theinterests of the general public. But a total ban on theslaughter of useless cattle, which involves a wasteful drainon the nation's cattle feed which is itself in short supplyand which would deprive the useful cattle of much needednourishment, cannot be justified as being in the interestsof the general public.Under O. XLI r. 2, Of file Supreme Court Rules interventionis permitted only to the Attorney-General of India or theAdvocates-General for the States. There is no otherprovision for permitting a third party to intervene in theproceedings before the Supreme Court. In practice, however,the Supreme Court, in- exercise of its inherent powers,allows a third party to intervene when such third party isa party to some proceedings in the Supreme Court or in theHigh Courts where the same or similar questions are inissue, for the decision of the Supreme Court will concludethe case of that party.

H. J. Umrigar, N. H. Hingorani and A. G. Ratnaparkhi, for the petitioners in all the petitions except Petition No. 103 of 1956. The impugned Acts infringe the fundamental rights under Art. 19(1)(g) of the petitioners who are butchers, tanners, gut merchants, curers and cattle dealers to carry on their respective trades. Where, as in the present case, the enactment on the face of it violates a fundamental right the burden lies on those who support it to show that it falls within the purview of cl. (6) of Art. 19. Saghir, Ahmed v. The State of U.P., ([1955] 1 S.C.R. 707 at 726);

Chiranjitlal Chowdhuri v. The Union of India, ([1950] S.C.R. 869 at 891-892). The impugned Acts put a total ban on the trade and business of the petitioners who kill only cattle. Total prohibition of a trade which is not immoral or obnoxious can never be reasonable restriction within the meaning of el. (6) of Art. 19. Chintaman Rao v. The State of Madhya Pradesh, ([1950] S.C.R. 759 at 765); R.M. Sheshadri v. The District Magistrate ( [1955] 1 S.C.R. 686 at 689, 690); Cooverjee B. Bharucha v. The Excise Commis- sioner, ( [1954] S.C.R. 873); Rashid Ahmed. The Municipal Board, Kairana, ([1950] S.C.R. 566). Total ban on the slaughter of cattle is not in the interests of the general public. Animal husbandry will suffer by a total ban. There is shortage of fodder and pasture in the country and the useless and uneconomic cattle will deprive the useful cattle of these things. Setting up of Gosadans for the uneconomic cattle will be a tremendous waste of public money. [Counsel referred to various official reports in this connection.] The impugned Acts create an odious discrimination between butchers and persons dealing solely in cows, bulls, etc., and those dealing in sheep and goats, and offend Art. 14. These Acts which single out the petitioners' community which kills only cows, bulls, etc., are hostile and discriminatory legislation. Ye Cong Eng v. Trinidad, (70 L. Ed. 1059 at 1071); Fowler v. Rhode Island, (97 L. Ed. 828); Lane v. Wilson, (83 L. Ed. 1281 at 1287); Ligget Co. v. Baldrige, (73 L. Ed. 204).

The impugned Acts also contravene Art. 25 as they prohibit the Mussalmans from performing the religious practice of the community to sacrifice the cow on the occasion of Bakr Id. Ratilal Panachand Gandhi v. The State of Bombay, ([1954] S.C.R. 1055 at 1063).

The directive principles of State policy set out in Art. 48 can never override fundamental rights. The State of Madras v. Sm. Champakam Dorairajan, ([1951]) S.C.R. 525 at 530); Saghir Ahmed's Case, ( [1955] ) 1 S.C.R. 707 at 727). The impugned Acts traverse, beyond the directive principles in Art. 48.

The Bihar and the Madhya Pradesh Acts which affect inter- State trade in cattle and beef offend Art. 301 and are void as the assent of the President was riot taken before enacting them.

Frank Anthony and K. L. Mehta, for the petitioners in Petition No. 103 of 1956. Section 9 of the U. P. Prevention of Cow Slaughter Act makes the slaughtering of cattle a cognisable and non-bailable offence. This and other provisions of the Act are ex facie restrictions on the right of the petitioners to carry on their trade. The onus is on the respondents to show that the restrictions are reasonable restrictions in the interests of the general public. Chintaman Rao v. The State of Madhya Pradesh, ([1950] S. C. R. 759 at 763); Seghir Ahmed v. The State of U. P., ([1955] 1 S. C. It. 707 at 726). The legislation is colourable and mala fide and is inspired by religious motives. State of Madras v. V. G. Rao, ([1952] S. C. R. 597). Article 48 in so far as its imposes blanket ban on cow would have to yield to Art. 19 (1) (g). The restrictions in the Act amount to total prohibition and extinction of the trade of beef butchers. Saghir Ahmed's case; Dwarka Prasad Laxmi Narain v. The State of U. P., ( [1954] S.C.R. 803), Fairmout Creamery Co. v. Minnesota, (71 L. Ed. 893 it 897). The impugned Act offends Art. 14 as it discriminates against the beef butchers. These butchers have a legal right to slaughter cow for food or sacrifice. Naubahar Singh v. Qadir Bux, (A. 1. R. 1930 All. 753); Shahbazkhan v. Umrao Puri, (I. L. R. 30 All. 181); Emperor -v. Muhammad Yakub, (I. L. R. 32 All. 571).

C. K. Daphtary, Solicitor-General of India, with Mahabir- Prasad, Advocate-General of Bihar and S. P. Varma (respondent in Petitions Nos. 58, 83 and 84 of 1956), and with R. H. Dhebar, for the State of Bombay (respondent in Petition No. 117 of 1956). The legislature has thought fit that slaughter of cattle should be stopped in the inter states of animal husbandry and public policy. It is not for the Court to say that such a policy should not have been adopted. Both on the question of policy at-id the extent of the restrictions the Court should interfere only if it is convinced that in no view of the matter could the restrictions be reasonable. There are two conflicting opinions on this controversial matter, i. e., whether there should be total ban or only partial ban. In such a case the opinion of the legislators must prevail and the Court should not interfere where there is controversy as to facts. State of -Madras v. V. G. Rao, ([1952] S. C. R. 597 at 606); The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh, ([1952] S. C. R. 889 at

941); Arumugham v. State of Madras, (I. L. R. [1953] Mad.

937). Unless it can be said that the restrictions have no bearing on the object sought to be achieved the legislation must be upheld. Article 37 enjoins the State to apply the directive principles of State policy in Part IV of the Constitution in making law., The legislation is in accordance with the direction given in Art. 48. The object of the legislation is not to control any trade or industry but to improve the breed of cattle and to organise animal husbandry and agriculture. Unless the legislation directly hits trade or business it does not infringe Art. 19 (1) (g). A. K. Gopalan v. The State, ( [1950] S. C. R. 88 at 101); Ram Singh v. The State of Delhi, ( [1951] S. C. R. 451 at 455-457); R. S. Ram Jawaya Kapur v. The State of Punjab, ([1955] 2 KS. C. R. 225); State of Bombay v. R. M. D. Chamar-baugwala, ( A. I. R. 1957 S. C. 699 at 721). B.Sen and R. H. Dhebar, for the State of Bombay (respondent in Petitions Nos. 126 to 128 and 248 of 1956), and for the State of Madhya Pradesh (respondent in Petition No. 144 of 1956).

M.Adhicary, Advocate-General for the, State of Madhya Pradesh and I. N. Shroff, for the State of Madhya Pradesh (respondent in Petition No. 145 of 1956), adopted the arguments of C. K. Daphtary.

H. N. Sanyal, Additional Solicitor-General of India, G.C. Mathur and C. P. Lal, for the State of U. P. (respondent in Petitions Nos. 103 of 1956 and 129 of 1957). The provisions of the U. P. Act have a reasonable relation to the purpose in view i. e. the directive in Art. 48 and consequently the Act cannot be said to offend Art. 19 (1) (g). Chintaman Rao v. The State of Madhya Pradesh, ([1950] S. C. R. 759 at 763). According to the facts and figures given in the Gosamvardhan Enquiry Committee's Report the cattle population was actually decreasing and total ban on slaughter was necessary to protect and preserve the cattle. The State of U. P. had made ample provisions for looking after the decrepit cattle, and such cattle also was not uneconomic as it yielded hides and manure.

The U. P. Act which prohibits the slaughter of cattle but not that of buffaloes does not offend Art. 14 as the discrimination is based upon proper classification. The buffalo does not require any protection. The female buffalo is in no danger as its yield of milk is very high. The he- buffalo is not very useful for draught purposes and there is no need to protect it. Besides, the buffalo population is steadily increasing.

The U. P. Act does not violate Art. 25. Article 25 of our Constitution is similar to Art. 8 of the Irish Constitution. There is no religious compulsion on the Mussalmans to sacrifice a cow on Bakr Id Day.

Thakurdas Bhargava, as amicus curiae. The directive principles of State policy in Part IV of the Constitution are superior to fundamental rights and the enactments which are in pursuance of the directions given by Art. 48 are valid and constitutional even though they may infringe the fundamental rights of the petitioners. The total ban on cow slaughter in the impugned Acts is justified and is in the interests of the general public. The facts and figures given in the official reports are inaccurate, and there is no real shortage of fodder or pasture land. There is shortage of milk in the country and it is essential to protect the cow. The bullock takes the largest share in meeting the power requirement for our agricultural production. Cow dung manure contributes about rupees 63 crores per year to our national income.

H.J. Umrigar, in reply.

Frank Anthony, also replied.

1958. April 23. The Judgment of the Court was delivered by DAS C. J.-These 12 petitions under Art. 32 of our ,Constitution raise the question of the constitutional validity of three several legislative enactments banning the slaughter of certain animals passed by the States of Bihar, Uttar Pradesh and Madhya Pradesh respectively. The controversy concerning the slaughter of cows has been raging in this country for a number of years and in the past it generated considerable illwill amongst the two major communities resulting even in riots and civil commotion in some places. We are, however, happy to note that the rival contentions of the parties to these proceedings have been urged before us without importing into them the heat of communal passion and in a rational and objective way, as a matter involving constitutional issues should be. Some of these petitions come from Bihar, some from U. P. and the rest from Madhya Pradesh, but as they raise common questions of law, it will be convenient to deal with and dispose of them together by one common judgment.

Petitions Nos. 58 of 1956, 83 of 1956 and 84 of 1956 challenge the validity of the Bihar Preservation and Improvement of Animals Act, 1955 (Bihar 11 of 1956), hereinafter referred to as the Bihar Act. In Petition No. 58 of 1956 there are 5 petitioners, all of whom are Muslims belonging to the Quraishi community which is said to be numerous and an important section of Muslims of this country. The members of the community are said to be mainly engaged in the butchers' trade and its subsidiary undertakings such as the sale of hides, tannery, glue making, gut making and blooddehydrating, while some of them are also engaged in the sale and purchase of cattle and in their distribution over the various areas in the State of Bihar as well as in the other States of the Union of India. Petitioners Nos. 1 and 2 are butchers and meat vendors who, according to the petition, only slaughter cattle and not sheep or goats and are called " Kasais " in contradistinction to the "'Chicks " who slaughter only sheep and goats. After slaughtering the cattle these petitioners sell the hides to tanners or bide merchants who are also members of their community and the intestines are sold to gut merchants. It is said that there are approximately 500 other Kasais in Patna alone apart from 2 lacs of other Kasais all over the State of Bihar. The correctness of these figures is not admitted by the respondent State but we do not doubt that the number of Kasais is considerable. Petitioner No. 3 is the owner of a tanning factory and Petitioner No. 4 is a gut merchant, while Petitioner No. 5 is the General Secretary of Bihar State Jamiatul Quraish. In petition No. 83 there are 180 petitioners residing at different places in the State of Bihar who are all Muslims whose occupation is that of Kasais or cattle dealers or exporters of hides. In Petition No. 84 there are 170 petitioners all residents of Patna District who are also Muslims belonging to the Quraishi community and who carry on business as Kasais or dealers of cattle. All the petitioners in these three petitions are citizens of India.

The Bill, which was eventually passed as the Bihar Act, was published in the Bihar Gazette on April 20, 1953. The scheme of the Bill, as originally drafted, was, it is said, to put a total ban only on the slaughter of cows and calves of cows below three years of age. The Bill was sent to a Select Committee and its scope appears to have been considerably enlarged, as will be seen presently. The Bill, as eventually passed by the Bihar Legislature, received the assent of the Governor on December 8, 1.955, and was published in the Official Gazette on January 11, 1956. Section 1 of the Act came into force immediately upon such publication, but before any notification was issued under sub-s. (3) of s. 1 bringing the rest of the Act or any part of it into force in the State or any part of it, the present petitions were filed in this Court challenging the consti- tutional validity of the Act. On applications for an interim order restraining the State of Bihar from issuing a notification under s. 1(3) of the Act bringing the Act into operation having been made in these petitions, the respondent State, by and through the learned Solicitor General of India, gave an undertaking not to issue such notification until the disposal of these petitions and, in the premises, no order was considered necessary to be made on those applications.

Petition No. 103 of 1956 has been filed by two petitioners, who are both Muslims residing in Uttar Pradesh and carrying on business in that State, the first one as a hide merchant and the second as a butcher. Petitioners in Petition No. 129 are eight in number all of whom are Muslims residing and carrying on business in Uttar Pradesh either as gut merchants or cattle dealers, or Kasais or beef vendors or bone dealers or hide merchants or cultivators. All the petitioners in these two applications are citizens of India. By these two petitions the petitioners challenge the validity of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 (LT. P. 1 of 1956), hereinafter referred to as the U. P. Act and pray for a writ in the nature of mandamus directing the respondent State of Uttar Pradesh not to take any steps in pursuance of the U. P. Act or to interfere with the fundamental rights of the petitioners. Petitions Nos. 117 of 1956, 126 of 1956, 127 of 1956, 128 of 1956, 248 of 1956, 144 of 1956 and 145 of 1956 have been filed by 6, 95, 541, 58, 37, 976 and 395 petitioners respectively, all of whom are Muslims belonging to the Quraishi Community and are mainly engaged in the butchers' trade and its subsidiary undertaking such as the supply of hides, tannery, glue making, gutmaking and blood- dehydrating. Most of them reside at different places which, at the dates of the filing of these petitions were parts of the State of Madhya Pradesh, but which or parts of which have, in the course of the recent re-organisation of the States, been transferred to and amalgamated with the State of Bombay. In consequence of such re-organisation of the States the State of Bombay has had to be substituted for the respondent State of Madhya Pradesh in the first five petitions and to be added in the sixth petition, for a part of the district in which the petitioners resided had been so transferred, while the State of Madhya Pradesh continues to be the respondent in the seventh petition.By these petitions the petitioners %II of whom are citizens Of India, challenge the validity of the C. P. and Berar Animal Preservation Act, 1949 (C. P. and Berar Lll of 1949), as subsequently amended.

In order to appreciate the arguments advanced for and against the constitutional validity of the three impugned Acts it will be necessary to refer to the relevant provisions of the Constitution under or pursuant to which they have been made. Reference must first be made to Art. 48 which will be found in Chapter IV of the Constitution which enshrines what are called the directive principles of )State policy. Under Art. 37 these directive principles are not enforceable by any court of law but are nevertheless fundamental in the governance of the country and are to be applied by the State in making laws. Article 48 runs thus:- Organisation 48. The State shall endeavour of agriculture and to organise agriculture 'and animal husbandry. animal husbandry oil modern and scientific lines and shall, in parti-

cular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle."

The principal purpose of this article, according to learned counsel for the petitioners, is to direct the ,State to endeavour to organise agriculture and animal husbandry on modern and scientific lines and the rest of the provisions of that article are ancillary to this principal purpose. They contend that the States are required to take steps for preserving and improving the breeds and for prohibiting the slaughter of the animals specified therein only with a view to implement that principal purpose, that is to say, only as parts of the general scheme for organising our agriculture and animal husbandry on modern and scientific lines. Learned counsel for the petitioners refer to the marginal note to Art. 48 in support of their contention on this part of the case. They also rely on entry 15 in List II of the Seventh Schedule to the Constitution. That entry reads: " Preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice." There is no separate legislative head for prohibition of slaughter of animals and that fact, they claim, lends support to their conclusion that the prohibition of the slaughter of animals specified in the last part of Art. 48 is only ancillary to the principal directions for preservation, protection and improvement of stock, which is what is meant by organising agriculture and animal husbandry. Learned counsel for the respondents and Pandit Thakurdas Bhargava, who appears as amicus cutriae, on the other hand, maintain that the article contains three distinct and separate directions, each of which should, they urge, be implemented independently -and as a separate charge. It is not necessary for us, on this occasion, to express a final opinion on this question. Suffice it to say that there is no conflict between the different parts of this article and indeed the two last directives for preserving and improving the breeds and for the prohibition of slaughter of certain specified animals represent, as is indicated by the words " in particular ", two special aspects of the preceding general directive for organising agriculture and animal husbandry on modern and scientific lines. Whether the last two directives are ancillary to the first as contended for by learned counsel for the peti- tioners or are separate and independent items of directives as claimed by counsel on the other side, the directive for taking steps for preventing the slaughter of the animals is quite explicit and positive and contemplates a ban on the slaughter of the several categories of animals specified therein, namely, cows and calves and other cattle which answer the description of milch or draught cattle. The protection recommended by this part of the directive is, in our opinion, confined only to cows and calves and to those animals which are presently or potentially capable of yielding milk or of doing work as draught cattle but does not, from the very nature of the purpose for which it is obviously recommended, extend to cattle which at one time were milch or draught cattle but which have ceased to be such. It is pursuant to these directive principles and in exercise of the powers conferred by Arts. 245 and 246 of the Constitution read with entry 15 in List 11 of the Seventh Schedule thereto that the, Legislatures of Bihar, Uttar Pradesh and Madhya, Pradesh have respectively enacted the statutes which are challenged as unconstitutional. In order properly, to appreciate the meaning and scope of the impugned Acts it has to be borne in mind that each one of those Acts is a law with respect to " preservation, protection and improvement of stock ", and their constitutional validity will have to be judged in that context and against that background. Keeping this consideration in view, we proceed now to examine the relevant provisions of the three Acts.

The title of the Bihar Act is " An Act to provide for the preservation and improvement of certain animals in the State of Bihar." Sub-section (3) of s. 1 provides that that section shall come into force at once and the remaining provisions of the Act or any of them shall come into force on such date as the State Government may, by notification, appoint and that different dates may be appointed for different provisions and for different areas. Section 2 is the definition section and the following definitions are to be noted:

(iii) elephant, horse, camel, ass, mule, dog, swine and such other domesticated animals as may be specified in this behalf by the State Government by notification in the Official Gazette;

(b)............................................................

(c) " bull " means an uncastrated male above the age of three years belonging to the species of bovine cattle ;

(d) " bullock " means a castrated male above the age of three years belonging to the species specified in clause

(e)" calf " means a female or a castrated or uncastrated male, of the age of three years and below belonging to the species specified in clause (c);

(f).........................................................

(g) " cow " means a female above the age of three years belonging to the species specified in clause (e) ; Section 3, which is the principal section for the purposes of the Bihar Petitions, runs as follows:

" 3. Prohibition of slaughter of cow, calf, bull or bullock. Notwithstanding anything contained in any law for the time being in force or in any usage or custom to the contrary, no person shall slaughter a cow, the calf of a cow, a bull or a bullock; Provided that the State Government may, by general or special order and subject to such conditions as it may think fit to impose, allow the slaughter of any such animal for any medicinal or research purposes."

Section 4 provides for penalties for contravention or attempted contravention or abetment of contravention of any of the provisions of s. 3. The remaining provision; in the following three chapters are not material for our present purpose. It will be noticed that the words " bull ", " bullock ", " calf " and " cow" have been defined in cls.

(c), (d), (e) and (g) of s. 2 as belonging to the species of bovine cattle. The expression " species of bovine cattle " is wide enough to in-elude and does in ordinary parlance include buffaloes,(male, or female adults or calves). Therefore, the corresponding categories of buffaloes, namely, buffalo bulls, buffalo bullocks, buffalo calves and she-buffaloes must be taken as included in the four defined categories of the species of bovine cattle and as such within the prohibition embodied in s. 3 of the Act. It is to be, noted, however, that the allegations in the petitions and the affidavits in opposition proceed on the assumption that buffaloes (male or female adults or calves) were not within the protection of the section and, indeed, when the attention of learned counsel for the petitioners was drawn to the reference to the " species of bovine cattle " in each of the four definitions, they still made an attempt to support the latter view by suggesting that if buffaloes were to be included within the words defined in cls. (c), (d), (e) and (g), then there was no necessity for specifying it separately in the definition of " animal " in el. (a). This argument does not appear to us to be sound at all, for, then, on a parity of reasoning it was wholly unnecessary to specify heifer " in the definition of " animal ". If heifer is not to be included in the definition of cow " because heifer " is separately enumerated in 'the definition of animal " then an astounding result will follow, namely, that the operative part of s. 3 will not prohibit the slaughter of " heifer " at all-a result which obviously could not possibly have been intended. The obvious reason for the enumeration of the different categories of animals in the definition of " animal " must have been to provide a word of wide import so that all those sections where the wider word " animal " is used may apply to the different kinds of animals included- within that term. If the intention of the Bihar legislature was to exclude buffaloes (male or female adults or calves) from the protection of s. 3 then it must be said that it has failed to fulfil its intention.

The U. P. Act is intituled " An Act to prohibit the slaughter of COW and its progeny in Uttar Pradesh." The preamble to the Act recites the expediency " to prohibit and prevent the slaughter of cow and its progeny in Uttar Pradesh". Although the 17. P. Act has been made under entry 15 in List 11 and presumably pursuant to the directives contained in Art. 48 nowhere in the Act is there any express reference whatever to the " preservation, protection or improvement of stock." Section 2 defines " beef " as meaning the flesh of cow but does not include the flesh of cow contained in sealed containers and imported as such in Uttar Pradesh. Clause (b) is very important, for it defines " cow " as including a bull, bullock, heifer, or calf. Section 3, which is the operative section runs thus:

3. Notwithstanding anything contained in any other law for the time being in force or any usage or custom to the contrary, no person shall slaughter or cause to be slaughtered or offer or cause to be offered for slaughter any cow in any place in Uttar Pradesh."

Two exceptions are made by s. 4 in respect of cows suffering from contagious or infectious disease or which is subjected to experimentation in the interest of medical or public health research. Section 5 prohibits the sale or transport of beef or beef products in any form except for medicinal purposes and subject to' the provisions of the exception therein mentioned. Section 6, on which counsel for the State relies, provides for the establishment, by the State Government or by any local authority wherever so directed by the State Government, of institutions as may be necessary for taking care of uneconomic cows. Under s. 7 the State Government may levy such charges or fees, as may be prescribed for keeping uneconomic cows in the institutions. Section 8 provides for punishment for contravention of the provisions of ss. 3, 4 and 5. Section 9 makes the offences created by the Act cognisable and non-bailable. Section 10 gives power to the State Government to make rules for the purpose of carrying into effect the provisions of the Act. It should be noted that the U. P. Act protects the " cow ", which, according to the definition, includes only bulls, bullocks, heifer and calves. There is no reference to the species of bovine cattle and, therefore, the buffaloes (male or female adults or calves) are completely outside the protection of this Act.

The C. P. and Berar Act of 1949 was originally intituled " An Act to provide for preservation of certain animals by controlling the slaughter thereof," and the preamble recited that it was " expedient to provide for the preservation of certain animals by controlling the slaughter thereof." ,Animal " was defined in s. 2 as meaning an animal specified in the schedule. The schedule specified the following categories of animals, namely, (1) bulls, (2) bullocks, (3) cows, (4) calves, (5) male and female buffaloes and (6) buffalo calves. Section 4 originally prohibited the slaughter of an " animal " without certificate. There was then no total ban on the slaughter of any animal as defined. ,In 1951, the C. P. and Berar Animal Preservation Act, 1949, was amended by the Madhya Pradesh Act XXIII of 1951. By this amending Act the words, " by prohibiting or " were added to the long title and the preamble before the word " controlling " and a new clause was added to s. 2 as el. (i)

(a) defining " cow " as including a female calf of a cow and sub-s. 1 of s. 4 was amended so as to read as follows: "(1) Notwithstanding anything contained in any other law for the. time being in force or in any usage to the contrary, no person-

(a) shall slaughter a cow; or

(b) shall slaughter any other animal unless he has obtained in respect of such other animal a certificate in writing signed by the executive authority and the veterinary officer for the area in which the animal is to be slaughtered that the animal is fit for slaughter."

Thus a total ban was imposed on the slaughter of cows and female calf of a cow and the male calf of a cow, bull, bullock, buffalo (male or female adult or calf) could be slaughtered on obtaining a certificate. The Act was further amended in 1956 by Act X of 1956 substituting for the amended definition of " cow " introduced by the amending Act of 1951 as cl. (1)(a) of s. 2 of the C. P. and Berar Animal Preservation Act, 1949, a new definition of " cow " as including a male or female calf of a cow, bull, bullock or heifer and a new schedule specifying only (1) cows, (2) male and female buffaloes and (3) buffalo calves was substituted for the original schedule to the Act. Shortly put the position in Madhya Pradesh has been this: while under the C. P. and Berar Animal Preservation Act, 1949, as it originally stood, the slaughter of all categories of animals mentioned in the original schedule were only controlled by the requirement of a certificate from the appropriate authority before the actual slaughter, by the amending Act XXIII of 1951, a total ban was imposed on the slaughter of " cows " which was then defined as including only a female calf of a cow and the slaughter of all other categories of animals coming within the original schedule was controlled and finally after the amending Act X of 1956, there is now a total ban on the slaughter of " cows " which by the new definition includes a male or female calf of a cow, bull, bullock or heifer so that the male and female buffaloes and buffalo calves (male and female) can still be slaughtered but on certificate issued by the proper authorities mentioned in the Act. The Madhya Pradesh Act X of 1956, amending the C. P. and Berar Animal peservation Act, 1949, received the assent of the Governor on May 18, 1956. The C. P. and Berar Animal Preservation Act, 1949, as amended up to 1956, is hereinafter referred to as the Madhya Pradesh Act.' To sum up, under the Bihar Act there is in the State of Bihar a total ban on slaughter of all categories of animals of the species of bovine cattle. In Uttar Pradesh there is, under the If. P. Act, a total ban on the slaughter of cows and her progeny which include bulls, bullocks, heifer or calves. The buffaloes (male or female adults or calves) are completely outside the protection of the Act. In the present Madhya Pradesh and the districts which formerly formed part of Madhya Pradesh but have since been transferred to the State of Bombay and where the Madhya Pradesh law including the Madhya Pradesh Act still applies, there is a total ban on the slaughter of cow, male or female calves of a cow, bulls, bullocks, or heifers and the slaughter of buffaloes (male or female adults or calves) are controlled in that their slaughter is permitted under certificate granted by the proper authorities mentioned in the Act. No exception has been made in any of these three Acts permitting slaughter of cattle even for bona fide religious purposes such as has been made, say, in the Bombay Animal Preservation Act, 1948 (Bom. LXXXI of 1948). As already stated the petitioners, who are citizens of India, and Muslims by religion, mostly belong to the Quraishi community and are generally engaged in the butchers' trade and its subsidiary undertakings such as supply of hides, tannery, glue making, gut making and blood de-hydrating, Those, who carry on the butchers trade, are mostly. Kasais who, the petitioners say kill only cattle but not ship or goat which are slaughtered by other persons known as Chicks. Learned counsel appearing for the petitioners challenge the, constitutional validity of the Acts respectively applicable to them on three grounds, namely, that they offend the fundamental rights guaranteed to them by Arts. 14 ' 19(1)(g) and 25. Learned counsel appearing for the respondent States, of course, seek to support their respective enactments by controverting the reasons advanced by learned counsel for the petitioners. Bharat Go-Sevak Samaj, All India AntiCow-Slaughter Movement Committee, Sarvadeshik Arya pratinidhi Sabha and M. P. Gorakshan Sangh put in petitions for leave to intervene in these proceedings. Under Order XLI, rule 2, of' the Supreme Court Rules intervention is permitted only to the Attorney- General of India or the Advocates General for the States. There is no other express provision for permitting a third party to intervene in the proceedings before this Court. In practice, however, this Court, in exercise of its inherent powers, allows a third party to intervene when such third party is a party to some proceedings in this Court or in the High Courts where the same, or similar questions are in issue, for the decision of this Court will conclude the case of that party. In the present case, however, the peti- tioners for intervention are not parties to any proceedings and we did not think it right to permit them formally to intervene in these proceedings; but in view of the importance of the questions involved in these proceedings we have heard Pandit Thakurdas Bhargava, who was instructed by one of these petitioners for intervention, as amicus curiae. We are deeply indebted to all learned counsel appealing for the parties and to Pandit Thakurdas Bhargava for the valuable assistance they have given us.

Before we actually take tip and deal with the alleged infraction of the petitioners' fundamental rights, it is necessary to dispose of a preliminary question raised by Pandit Thakurdas Bhargava. It will be recalled that the impugned Acts were made by the States in discharge of the obligations laid on them by Art. 48 to endeavour to organise agriculture and animal husbandry and in particular to take steps for preserving and improving the breeds and prohibiting the slaughter of certain specified animals. These directive principles, it is true, are not enforceable by any court of law but nevertheless they are fundamental in the governance of the country and it is the duty of the State to give effect to them. These laws having thus been made in discharge of that fundamental obligation imposed on the State, the fundamental rights conferred on the citizens and others by Chapter III of the Constitution must be regarded as subordinate to these laws. The directive principles, says learned counsel, are equally, if not more, fundamental and must prevail. We are unable to accept this argunent as sound. Article 13(2) expressly says that the State shall not make any law which takes away or abridges the rights conferred by Chapter III of our Constitution which enshrines the fundamental rights. The directive principles cannot over-ride this categorical restriction imposed on the legislative power of the State. A harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights, for otherwise the protecting provisions of Chapter III will be " a mere rope of sand ". As this Court has said in the State of Madras v. Smt. Champakam Dorairajan (1) , "The directive principles of State policy have to conform to and run as subsidiary to the Chapter on Fundamental Rights".

Coming now to the arguments as to the violation of 4 the petitioners' fundamental rights, it will be convenient to take up first the complaint founded on Art. 25(1). That article runs as follows:

" Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion". (1) [1951] S.C.R. 525 531-

After referring to the provisions of el. (2) which lays down certain exceptions which are not material for our present purpose this Court has, in Ratilal Panachand Gandhi v. The State of Bombay (1) explained the meaning and scope of this article thus:

" Thus, subject to the restrictions which this article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit hisbelief and ideas in such overt acts as are enjoinedor sanctioned by his religion and further to propagatehis religious views for the edification of others. Itis immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. The free exercise of religion by which is meant the performance of outward acts in pursuance of relgious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people. "

What then, we inquire, are the materials placed before us to substantiate the claim that the sacrifice of a cow is enjoined or sanctioned by Islam ? The materials before us are extremely meagre and it is surprising that on a matter of this description the allegations in the petition should be so vague. In the Bihar Petition No. 58 of 1956 are set out the following bald allegations:

That the petitioners further respectfully submit that the said impugned section also violates the fundamental rights of the petitioners guaranteed tinder Article 25 of the Constitution in-as-much as on the occasion of their Bakr Id Day, it is the religious practice of the petitioners' community to sacrifice a cow on the said occasion. The poor members of the community usually sacrifice one cow for every 7 members whereas it would require one sheep or one goat for each member which would entail considerably more expense. As a result of the total ban imposed by the impugned section the petitioners would not even be allowed to make the said sacrifice which is a practice (1) [1954] S.C.R. 1055, 1062-1063.

and custom in their religion, enjoined upon them by 'the Holy Quran, and practised by all Muslims from time immemorial and recognised as such in India. " The allegations in the other petitions are similar. ,These are met by an equally bald denial in para. 21 of the affidavit in opposition. No affidavit has been filed by any person specially competent to expound the relevant tenets of Islam. 'No reference 'is made in the petition to any particular Surah of the Holy Quran which, in terms, requires the sacrifice of a cow. All that was placed before us during the argument were Surah XXII, Verses 28 and 33, and Surah XXII,. What the Holy book enjoins is that people should pray unto the Lord and make sacrifice. We have no affidavit before us by any Maulana explaining the implications of those Verses or throwing any light on this problem. We, however, find it laid down in Hamilton's translation of Hedaya Book XLIII at p. 592 that it is the duty of every free Mussulman, arrived at the age of maturity, to offer a sacrifice on the Yd Kirban, or festival of the sacrifice, provided he be then possessed of Nisab and be not a traveller. The sacrifice established for one person is a goat and that for seven a cow or a camel. It is therefore, optional for a Muslim to sacrifice a goat for one person or a cow or a camel for seven persons. It does not appear to be obligatory that a person must sacrifice a cow. The very fact of an option seems to run counter to the notion of an obligatory duty. It is, however, pointed out that a person with six other members of his family may afford to sacrifice a cow but may not be able to afford to sacrifice seven goats. So there may be an economic compulsion although there is no religious compulsion. It is also pointed out that from time immemorial the Indian Mussalmans have been sacrificing cows and this practice, if not enjoined, is certainly sanctioned by, their religion and it amounts to their practice of religion protected by Art.

25. While the petitioners claim that the sacrifice of a cow is essential, the State denies the obligatory nature of the religious practice. The fact, emphasised by the respondents, cannot be disputed, namely, that many Mussalmans do not sacrifice a cow on the Bakr Id Day. It is part of the known history of India that the Moghul Emperor Babar saw the wisdom of prohibiting the slaughter of cows as and by way of religious sacrifice and directed his son Humayun to follow this example. Similarly Emperors Akbar, Jehangir, and Ahmad Shah, it is said, prohibited cow slaughter. Nawab Hyder Ali of Mysore made cow slaughter an offence punishable with the cutting of the hands of the offenders. Three of the member of the Gosamvardhan Enquiry Committee set up by the Uttar Pradesh Government in 1953 were Muslims and concurred in the unanimous recommendation for total ban on slaughter of cows. We have, however, no material on the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible for us to uphold this claim of the petitioners.

The next complaint is against the denial of the equal protection of the law. It is thus formulated: The petitioners are Muslims by religion and butchers (Kasais) by occupation and they carry on the trade of selling beef. The impugned Acts prejudicially affect only the Muslim Kasais who kill cattle but not others who kill goats and sheep and who sell goats' meat and mutton. It is, therefore, clear that only the Muslim Kasais, who slaughter only cattle but not sheep or goats, have been singled out for hostile and discriminatory treatment. Their further grievance is that the U. P. Act makes a distinction even between butchers who kill cattle and butchers who kill buffaloes and the Madhya Pradesh Act also makes a like discrimination in that slaughter of buffaloes is permitted, although under certificate, while slaughter of cows, bulls, bullocks and calves are totally prohibited. In the premises the petitioners contend that the law which permits such discrimination must be struck down as violative of the salutary provisions of Art. 14 of the Constitution.

The meaning, scope and effect of Art. 14, which is the equal protection clause in our Constitution, has been explained by this Court in a series of decisions in cases beginning with Chiranjitlal Choudhury v. The Union of India (1) and ending with the recent case of Ram Krishna Dalmia and others v. Sri Justice S. R.Tendolkar (2). It is now well established that while Art. 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation and that in order to pass the test of permissible classi- fication two conditions must be fulfilled, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) such differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification, it has been held, may be founded on different bases, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of' classification and the object of the Act under consideration. The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. We, therefore, proceed to examine (1) [1950] S.C.R. 869. (2) [1959] S.C.R. 279.

the impugned Acts in the light of the principles thus enunciated by this Court.

The impugned Acts, it may be recalled, have been made by the States in discharge of the obligations imposed on them by Art. 48. In order to implement the directive principles the respective Legislatures enacted the impugned Acts in exercise of the powers conferred on them by Art. 246 read with entry 15 in List II of the Seventh Schedule. It is, therefore, quite clear that the objects sought to be achieved by the impugned Acts are the preservation, protection and improvement of livestocks. Cows, bulls, bullocks and calves of cows are no doubt the most important cattle for the agricultural economy of this country. Female buffaloes yield a large quantity of milk and are, therefore, well looked after and do not need as much protection as cows yielding a small quantity of milk require. As draught cattle male buffaloes are not half as useful as bullocks. Sheep and goat give very little milk compared to the cows and the female buffaloes and have practically no utility as draught animals. These different categories of animals being susceptible of classification into separate groups on the basis of their usefulness to society, the butchers who kill each category may also be placed in distinct classes according to the effect produced on society by the carrying on of their respective occupations. Indeed the butchers, who kill cattle, according to the allegations of the petitioners themselves in their respective petitions, form a well defined class based on their occupation. That classification is based on an intelligible differentia which places them in a well defined class and distinguishes them from those who kill goats and sheep and this differentia has a close connection with the object sought to be achieved by the impugned Act, namely, the preservation, protection and improvement of our livestock. The attainment of these objectives may well necessitate that the slaughterers of cattle should be dealt with more stringently than the slaughterers of, say, goats and sheep. The impugned Acts, therefore, have adopted a classification on sound and intelligible basis and can quite clearly stand the test laid down in the decisions of this Court. Whatever objections there may be against the validity of the impugned Acts the -denial of equal protection of the laws does not, prima facie, appear to us to be one of them. In any case, bearing in mind the presumption of constitutionality attaching to all enactments founded on the recognition by the court of the fact that the legislature correctly appreciates the needs of its own people there appears to be no escape from the conclusion that the petitioners have not discharged the onus that was on them and the challenge under Art. 14 cannot, therefore, prevail.

Learned counsel for the petitioners then take their final stand on Art. 19(1)(g). Immediately learned counsel for the respondents counter the charge by saying that Art. 19(1)(g) can hit only the law which purports to directly violate its provisions. The impugned Acts, we are reminded, have been made in implementation of the directive principles laid down in Art. 48 and are laws with respect to matters set forth in entry 15 of List II and it is emphasised that the sole purpose of these enactments is to secure the preservation, protection and improvement of stock and that its real aim is not to take away or abridge the rights guaranteed by Art. 19(1)(g). If at all, these enactments may only indirectly and incidentally affect those, rights but that circumstance cannot alter their real nature and purpose. Reliance is placed in support of this contention on the following observations of Kania C. J. in A. K. Gopalan v. The State (1).

" If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peaceably and without aims, etc., the question whether that legislation is saved by the relevant saving clause of article' 19 will arise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub-clauses is abridged, the question of the application of article 19 does not arise. The true approach is only to consider the directness of the legislation and not what will (1) [1950] S.C.R. 88, 101.

be the result of the detention otherwise valid, on the mode of the detenue's life. "

This part of the argument advanced on behalf of the respondents is further sought to be reinforced by the fact that the above observations of Kania C. J. had subsequently been adopted by this Court in Ram Singh v.The State of Delhi (1). Those observations of Kania C. J. should, in our opinion, be read in the context of the facts of those cases. It should be remembered that both these cases arose out of orders made under the Preventive Detention Act, 1950. Article 22, which is to be found in Chapter III of the Constitution, recognises the necessity for preventive detention, however odious it may be. The purpose of the Act under which the detention orders had been made in those cases, was to prevent the persons concerned from acting in any manner prejudicial to one or other of the three impor- tant matters specified therein. The effect of the execution of the orders was to deprive those persons of their liberty according to procedure established by law. Preventive detention, like punitive detention, having taken away the personal liberty of those persons they could not claim the rights under Art. 19(1)(a) to (e) and (g) for those were the rights of free men. It was, therefore, considered that the primary and direct object of the Preventive Detention Act, 1950, being, inter alia, to secure the security of the State and maintenance of law and order, its impact on the fundamental rights was indirect and, therefore, the Act could not be challenged for breach of the fundamental rights under Art. 19(1). The position in the cases now before us is quite different. The last part of the directive principles embodied in Art. 48 require the State to take steps for prohibiting the slaughter of the specified animals and this directive can only be carried out by prohibiting the petitioners and other butchers (Kasais) from. slaugh- tering them. There can be no mistake about the directness of these legislations vis-a-vis the petitioners and other butchers and the effect of these legislations on their rights is direct and instantaneous as soon as they are brought into force. The title of the U. P. Act (1) [1951]1 S.C.R. 451, 456-457.

does not even attempt to conceal the directness of its impact on the butchers of Uttar Pradesh. The argument of learned counsel for the respondents on this point cannot be accepted and the question of the alleged violation of Art. 19(1)(g) has to be dealt with on merits.

The complaint of the petitioners under Art. 19 (1) (g) is that the impugned Acts, if enforced, will compel them at once to close down their business and will, in effect, amount to a complete denial of their right to carry oil their occupation, trade or business in spite of the mandatory provisions of Art. 19(1)(g). The objection is elaborated thus: The livelihood of a butcher of cattle depends on the existence of many factors. First he has to purchase the cattle which he will slaughter. The statistics will show that a large number of cattle are slaughtered for food every year. According to Table 11 on p. 24 of the Report on the Marketing of Cattle in India 18,93,000 heads of cattle and 6,09,000 buffaloes were slaughtered in the year 1948. Taking that 7 goats are the equivalent in flesh of cow or buffalo these butchers who slaughter 25,02,000 bovine cattle will have to find 7 times that number of goats or sheep, that is to say, they will have to have 1,75,14,000 extra goats and sheep per year. This it is said, is not available in -India. Then the butchers will have to find buyers for this enormous quantity of goats' meat or mutton the price of which, according to the figures given at p.12 of the Expert Committee'.-, Report, is very much higher than that of beef. Poorer people may afford to buy beef occasionally but goat-,' meat or mutton will be beyond their reach and consequently there will not be a market for sale of the meat of so many goats and sheep and the butchers will have to reduce the number of goats and sheep for purposes of slaughter and that will reduce their income to a negligible figure. Further, what will they do with the skins of so many goats, and sheep ? They will not have ready sale in the market as hides of cows and buffaloes have, for the latter are used in the manufacture of boots, shoes, suit cases, belts and other leather goods while the skins of goats and sheep will be useless for such purpose. The same considerations will apply to the guts. There is, therefore, no escape, say learned counsel for the petitioners from the inevitable conclusion that a total ban on the slaughter of all animals belonging to the species of bovine cattle will bring about a total prohibition of the business and occupation of the butchers (Kasais). Clause (6) of Art. 19, no doubt, protects the operation of the existing laws in so far as they impose and do not prevent the State from making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by Art. 19(1)(g). But restrictions, they say, cannot extend to total prohibition and reference is made to the observations to be found in some of the decisions of this Court. The contention is that the State may regulate but cannot annihilate a business which a citizen has a right to carry on.

JUDGMENT:WITH Crl.A.No.1209/97,1210-1212/97, 1213/97, 1214/97, 1215/97, 1216/97,1217-18/97, 1219/97, 1220/97, 1221/97,1222/97,186/98 & 187/98 J U D G M E N T BHARUCHA,J.On 26th July, 1993, a motion of no-confidence was moved in the Lok Sabha against the minority government of P.V. Narasimha Rao.The support of 14 member was needed to have the no-confidence motion defeated. On 28th July, 1993, the no-confidence motion was lost, 251 members having voted in support and 265 against. Suraj Mandal, Shibu Soren, Simon Marandi and Shailender Mahto, members of the Lok Sabha owing allegiance to the Jharkhand Mukti Morcha (the JMM), and Ram Lakhan Singh Yadav, Roshan Lal, Anadicharan Das, Abhay Pratap Singh and Haji Gulam Mohammed, members of the Lok Sabha owing allegiance to the Janata Dal, Ajit Singh group(the J.D.,A.S.), voted against the no-confidence motion. Ajit Singh, a member of the Lok Sabha owing allegiance to the J.D,A.S., abstained from voting thereon.

It is the respondents case that the abovenamed members agreed to and did receive bribes, to the giving of which P.V. Narasimha Rao, M.P. and Prime Minister, Satish Sharma, M.P. and Minister, Buta Singh, M.P. V.Rajeswar Rao, M.P., N.M. Ravanna, Ram Linga Reddy, M.L.A., M.Veerappa Moily, M.L.A. and Chief Minister, State of Karnataka, D.K.Adikeshavulu, M. Thimmogowda and Bhajan Lal, M.L.A. And Chief Minister, State of Haryana, were parties, to vote against the no-confidence motion. A prosecution being launched against the aforesaid alleged bribe givers and bribe takers subsequent to the vote upon the no-confidence motion, cognizance was taken by the Special Judge, Delhi. The Charge framed against P.V. Narasimha Rao reads thus:"That you P.V. Narasimha Rao between July and August, 1993 at Delhi and Bangalore were party to a criminal conspiracy and agreed to or entered into an agreement with your co-accused Capt. Satish Sharma, Buta Singh, V.Rajeshwara rao, HM Revanna, Ramlinga Reddy, M.Veerappa Moiley, D.K. Audi Keshvalu, M. Thimmegowda, Bhajan Lal, JMM (Jharkhand Mukti Morcha) MPs Suraj Mandal, Shibu Soren, Simon Marandi, Shailendra Mahto (approver, since granted pardon on 8.4.97), Janta Dal (Ajit Group) MPs Ajit Singh Ram Lakhan Singh Yadav, Ram Sharan Yadav, Roshan Lal, Anadi Chran Das, Abhay Pratap Singh , Haji Ghulam Mohd, Khan and late G.C. Munda to defeat the no- confidence motion moved on 26.7.93 against the then Congress (I) Govt. headed by you by illegal means viz. To offer or cause to offer and pay gratification other than the legal remuneration to your co- accused persons namely J.M.M. and Janta Dal (A) MPs named above as a motive or reward for their helping in defeating the said no confidence motion moved by the opposition parties and in pursuance of the said agreement you paid or caused to pay several lacs of rupees to the above referred JMM and Janta Dal (A) MPs who obtained or attempted to obtain the same in the manner stated above and thereby you have committed an offence punishable u/S 120 B IPC r/w Sections 7,12 and 13(2) r/w 13 (2) r/w 13(i)(d) of the PC Act 1988 and within my cognizance.Secondly you P.V. Narasimha Rao in pursuance of the aforesaid criminal conspiracy during the aforesaid period and at the aforesaid places abetted the commission of offence punishable u/S 7 of P.C. Act by above referred JMM and Janta Dal (A) MPs and thereby you have committed an offence punishable u/S 12 of the P.C. Act and within my cognizance."Similarly charges were framed against the alleged bribe givers.The charge framed against Suraj Mandal of the J.M.M. reads thus:"Firstly you between July and August, 1993 at Delhi and Bangalore were party to a criminal conspiracy and agreed to or enter into an agreement with your co-accused P.V. Narasimha Rao, Capt. Satish Sharma, Buta Singh, V.Rajeshwara Rao, H.M. Revanna, Ramlinga Reddy, M.Veerappa Moiley, D.K. Audi Keshvalu. M, Thimmegowda, Bhajan Lal, JMM (Jharkhand Mukti MOrcha) MPs Shibu Soren. Simon Marandi, Shailendra Mehto (Approver, since granted pardon on 8.4.97), Janta Dal (Ajit Group) MPs, Ajit Singh, Ram Lakhan Singh Yadav. Roshan Lal, Anadi Chran Dass, Abhey Partap Singh, Haji Ghulam Mohd. Khan and late G.C. Munda to defeat the no confidence motion moved against the then Congress (I) Government headed by accused Shri P.V.Narasimha Rao on 26.793 by illegal means viz. To obtain or agree to obtain gratification other than legal remunerations from your above named accused persons other than JMM and Janta Dal (A) MPs as a motive or reward for defeating the no confidence motion and in pursuance thereof above named accused persons other than JMM and Janta Dal (A) passed on several lacs of rupees to you or your other co-accused namely JMM and Janta Dal (A) MPs which amounts were persons and thereby you have committed an offence punishable u/s 120B r/w Sections 7,12,13(2) r/w section 134(i)(d) of the P.C. Act and within my cognizance.Secondly, that you being a public servant while functioning in your capacity of Member of Parliament (10th Lok Sabha) during the aforesaid period and at the aforesaid places in pursuance of the aforesaid conspiracy demanded and accepted from your co-accused other than JMM & JD(A) MPs mentioned above a sum of Rs.280 lacs for yourself and other JMM MPs named above other than your legal remuneration as a motive or reward for defeating above referred no confidence motion moved against the then Govt. of Congress (I) headed by your co-accused Shri P.V. Narasimha Rao and thereby you have committed an offence punishable u/S 7 the P.C. Act and within my cognizance.Thirdly, you during the aforesaid period and at the aforesaid places being a public servant while functioning in your aforesaid capacity of Member of Parliament by corrupt or illegal means and by abusing your position as a said public servant obtained for yourself or your other co- accused i.e. JMM MPs named above the pecuniary advantage to the extent of Rs.280 lacs and thereby committed an offence punishable u/S 13(2) read with Section 13(i)(d) of P.C. Act and within my cognizance.Fourthly, that you during the pendency of investigation of present case while writ petition No.789/96 was pending disposal in Hon'ble High Court between February to April, 1996 at Delhi, Ranchi and other places intentionally caused to bring false evidence into existence by fabricating or causing to fabricate the documents or records i. e. books of accounts, proceeding books, etc. of JMM Central Office. Ranchi for the purpose of being used in any stage of judicial proceedings and thereby committed an offence u/S 193 IPC and within my cognizance.Similar charges were framed against the other alleged bribe takers of the J.M.M Similar charges were also framed against the alleged bribe takers of the J.D., A.S., except that there was no charge against them under Section 193 of the Indian Penal Code. Shailender Mahto of the J.M.M., it may be mentioned, later turned approver and was pardoned.The persons sought to be charged as aforesaid filed petitions in the High Court at Delhi Seeking to quash the charges. By the judgment and order which is under challenge, the High Court dismissed the petitions. Hence, these appeals. The appeals were heard by a bench of three learned judges and then referred to a Constitution Bench, broadly put, is that, by virtue of the provisions of Article 105, they are immune from the prosecution and that, in any event, they cannot be prosecuted under the Prevention of Corruption Act, 1998.Privilege.Article 105 of the Constitution reads thus: "105. Powers, privileges, etc., of the House of Parliament and of the members and committees thereof. -(1) Subject to the provisions of this Constitution and to the rules and standing order regulating the procedure of Parliament, there shall be freedom of speech in Parliament.(2) NO Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, papers, votes or proceedings.(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House. shall be such as may from time to time be defined by Parliament by law, and until so defined shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment ) Act, 1978.(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this constitution to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of the Parliament."

1. By and Order dated October 26,1990 passed in Subhash Sharma and Ors. and Anr. Union of India (1990) 2 S.C.R. 433 and the matters connected therewith, the papers of Writ petition No. 1303 of 1987 - Supreme Court Advocates-on-Record Association and Anr. v. Union Of India were directed to be placed before the learned Chief Justice of India for constituting a Bench of nine Judges to examine the two question referred therein, namely, the position of the Chief Justice of India with reference to primacy, and justiciability of fixation of Judge strength. That Order was made since the referring Bench was of the opinion, that the correctness of the majority view in S.P. Gupta and Ors. etc. etc. v. Union of India and Ors. etc. etc. (1982) 2 SCR 365 : (AIR 1982 SC 149), required reconsideration by a larger Bench. This is how these questions arise for decision by this Bench.

2. The context in which the aforesaid two questions have been referred for decision by this Bench requires that they be considered in all the facts as were argued before us by all, to give a comprehensive answers to the problem. It is, therefore, appropriate to reformulate the two questions as under:

(1) Primacy of the opinion of the Chief Justice of India in regard to the appointments of Judges to the Supreme Court and the High Court, and in regard to the transfers of High Court Judges/Chief Justices; and (2) Justiciability of these matters, including the matter of fixation of the Judge-strength in the High Courts.

3. Able assistance was afforded to us by several eminent counsel who appeared to canvass the different viewpoints in order to focus attention on every aspect of these questions. Sarvashri F.S. Nariman, Kapil Sibal, Ram Jethmalani, P.P. Rao and Shanti Bhushan argued for reconsideration of the majority opinion in S.P. Gupta, contending that the role of the Chief Justice of India in the matter of appointments to the Supreme Court and the High Courts and transfers of the High Court Judges and Chief Justices has primacy, with the executive having the role of merely making the appointments and transfers in accordance with the opinion of the Chief Justice of India. This, in substance, was the common theme of their address. However, there were minor variations between them relating to the extent of exclusion of the executive's role. One point of view canvassed was that the primacy of the Chief Justice of India is in all matters; another point of view was that in an exceptional case the executive may not make an appointment recommended by the Chief Justice of India if, for strong reasons disclosed to the Chief Justice of India, that appointment was considered to be unsuitable. It was also contended by them that the matter of fixation of the Judge-strength under Article 216 is justiciable, there being some difference between them about the extent to which it is justiciable. Shri S.P. Gupta, petitioner-in-person in Writ Petition No. 156 of 1993, also argued that the majority opinion in S.P. Gupta v. Union of India (1982) 2 SCR 365 : (AIR 1982 SC 149) , is incorrect.

4. Shri K. Parasaran by and large argued in favour of affirmance of the majority opinion in S.P. Gupta, contending that there is no occasion to take a different view, more so when, in spite of that decision, in the actual working, the Government of India gives the greatest weight to the opinion of the Chief Justice of India; and, except on rare occasions, appointments have been made only in accordance with the opinion of the Chief Justice of India. Shri Parasaran submitted that the Constituent Assembly Debates show that the plea for primacy of Chief Justice of India, or the requirement of his concurrence in making the appointment, was considered and expressly discarded while drafting the Constitution. He also submitted that the several provisions in the Constitution relating to the oath of office; fixity of tenure; restriction against alteration of conditions of service to the detriment of the judges after their appointment; salaries and pensions being charged on the Consolidated Fund; restriction on discussion of their conduct in the legislature; power to punish for contempt; and open hearing in courts are sufficient safeguards for the independence of the judiciary and therefore, no further exclusion of the executive's role in the process of appointment of Judges is contemplated.

5. The learned Attorney General, in substance, canvassed for acceptance of the opinion of Pathak, J. (as he then was) in S.P. Gupta as the correct view, providing a middle course. The learned Advocate General of Karnataka agrued for reconsideration of the majority opinion in S.P. Gupta. He contended that the role of the executive is merely to suggest the names of those it considers suitable, to the Chief Justice, but initiation of the proposal must be by the Chief Justice and the opinions of the Chief Justice of India and Chief Justice of the High Court are entitled to much greater weight. The learned Advocate General submitted, that any person disapproved of by the Chief Justice of India cannot be appointed a Judge; and the President is not bound to appoint every one who may be recommended. He also submitted that the opinion of the judiciary binds the executive even in the matter of fixation of Judge-strength under Article 216, as a matter of policy. On the other hand the learned Advocate General of Sikkim contended that the primacy is in the executive, and the majority opinion in S.P. Gupta is correct. To the same effect was the submission of the learned Advocate General of Madhya Pradesh.

6. Shri R.K. Garg submitted that the opinion of Pathak, J. (as the then was) in S.P. Gupta is preferable, that there is primacy of the role of the Chief Justice of India in the process of appointment, which is an inter-grated process. The submissions of some others who addressed us fall within the broad parameters of the rival contentions.

7. It is unnecessary for us the burden this opinion with the full historical background in which these questions arise for decision, since the same is stated at length in S.P. Gupta and, along with the subsequent developments, mentioned in the referring Order. However, for the sake of convenience, a brief resume of the background in which these questions have to be considered, may be given.

BACKGROUND

8. These questions have to be considered in the context of the independence of the judiciary, as a part of the basic structure of the Constitution, to secure the 'rule of law' essential for the preservation of the democratic system, the broad scheme of separation of powers adopted in the Constitution, together with the directive principle of 'separation of judiciary from executive' even at the lowest strata, provide some insight to the true meaning of the relevant provisions in the Constitution relating to the composition of the judiciary. The construction of those provisions must accord with these fundamental concepts in the constitutional scheme to preserve the vital and promote the growth essential for retaining the Constitution as a vibrant organism.

9. It is useful to refer to certain observations by a Constitution Bench in Sub-committee on Judicial Accountability v. Union of India and Ors. (1991) 4 SCC 699, as under :- ... it is necessary to take a conspectus of the constitutional provisions concerning the judiciary and its independence. In interpreting the constitutional provisions in this area the Court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution. Rule of law is a basic feature of the Constitution which permeates the whole of the constitutional fabric and is an integral part of the constitutional structure. Independence of the judiciary is an essential attribute of rule of law.

10. In S.P. Gupta the concept of independence of the judiciary to be kept in view, while interpreting the relevant provisions of the Constitution, was summerised by Bhagwati, J. (as he then was), thus :

Judges should be stern stuff and tough fire, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says "Be you ever so high, the law is above you." This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution.

11. Pathak, J. (as he then was) in S.P. Gupta under the topic 'The Rule of Law and the administration of justice', stated thus :

... While the administration of justice draws its legal sanction from the Constitution, its credibility rests in the faith of the people. Indispensable to that faith is the independence of the judiciary. An Independent and impartial judiciary supplies the reason for the judicial institution, it also gives character and content to the constitutional milieu.

...In fashioning of the provisions relating to the judiciary, the greatest importance was attached to securing the independence of the judges, and throughout the Constituent Assembly debates the most vigorous emphasis was laid on that principle... the framers of the Constitution took great pains to ensure that an even better and more effective judicial structure was incorporated in the Constitution, one which would meet the highest expectations of judicial independence....

(emphasis supplied)

12. This perception of the concept of independence of the judiciary is in harmony with the 'Basic Principles on the independence of the Judiciary' forming a part of the universal 'Human Rights in the Administration of Justice' envisaged by the Seventh United Nations Congress at Milan and endorsed by the U.N. General Assembly in 1985, which provide inter alia as under :

10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives....

xxx xxx xxx

13. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience. (emphasis supplied) (Human rights - A Compilation of International Instruments (1988) at p.

267.)

13. Mathew, J. in Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr. (1975) Supp. SCC 1, after indicating that the rule of law is a part of the basic structure of the Constitution, apart of the basic structure of the Constitution, apart from democracy, as held in Kesavananda Bharati (1973) Supp. Supp. S.C.R. 1, proceeded to succinctly summarise the modern concept of the rule of law, as under :

...'Rule of law' is an expression to give reality to something which is not readily expressible. That is why Sir Ivor Jennings said that it is an unruly horse.... Dicey's formulation of the rule of law, namely.

the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power, excluding the existence of arbitrariness, of prerogative, even of wide discretionary authority on the part of the government has been discarded in the later editions of his book. That is because it was realized that it is not necessary that where law ends, tyranny should begin. As Culp Davis said, where the law ends, discretion begins and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness.... It is impossible to find a government of laws alone and not of men in the sense of eliminating all discretionary powers. All governments are governments of law and of men....

xxx xxx xxx Another definition of rule of law has been given by Friendrich A. Hayek in his books : "Road to Serfdom" and "Constitution of Liberty". It is much the same as that propounded by the Franks Committee in England : The rule of law stands for the view that decisions should be made by the application of known principles or laws. In general such decisions will be predictable, and the citizen will known where he is. On the other hand there is what is arbitrary. A decision may be made without principle, without any rules. It is therefore unpredictable, the antithesis of the decision taken in accordance with the rule of law.

xxx xxx xxx If it is contrary to the rule of law that discretionary authority should be given to government departments or public officers, then there is no rule of law in any modern State...it is impossible to enunciate the rule of law which has as its basis that no decision can be made unless there is a certain rule to govern the decision.

Leaving aside these extravagant versions of rule of law, there is a genuine concept of rule of law and that concept implies equality before the law or equal subjection of all classes to the ordinary law. But, if rule of law is to be a basic structure of the Constitution, one must find specific provisions in the Constitution embody the constituent elements of the concept. I cannot conceive of rule of law as a twinkling star up above the Constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four comers of the Constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law. Even if I assume that rule of law is basic structure, it seems to me that the meaning and the constituent elements of the concept must be gathered from the enacting provisions of the Constitution. The equality aspect of the rule of law and of democratic republicanism is provided in Article 14. Maybe, the other articles referred to do the same duty.

(emphasis supplied)

14. It is, therefore, realistic that there has to be room for discretionary authority within the operation of the rule of law, even though it has to be reduced to the minimum extent necessary for proper govenance; and within the area of discretionary authority, the existence of proper guidelines or norms of general application excludes any arbitrary exercise of discretionary authority. In such a situation, the exercise of discretionary authority in its application to individuals, according to proper guidelines or norms, further reduces the area of discretion; but to that extent discretionary authority has to be given to make the system workable. A further check in that limited sphere is provided by the conferment of the discretionary authority not to one individual but to a body of men, requiring the final decision to be taken after full interaction and effective consultation between them, to ensure projection of all likely points of view and procuring the element of plurality in the final decision with the benefit of the collective wisdom of all those involved in the process. The conferment of this discretionary authority in the highest functionaries is a further check in the same direction. The constitutional scheme excludes the scope of absolute power in any one individual. Such a construction of the provisions also, therefore, matches the constitutional scheme and the constitutional purpose for which these provision were enacted.

15. It is also useful to refer to certain observations of the referring Bench in Subhash Sharma, the significance of which cannot be doubted. It was observed therein, as under : In India, however, the judicial institutions, by trading, have an avowed apolitical commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. Constitutional phraseology of "consultation" has to be understood and expounded consistent with and to promote this constitutional spirit. These implications are, indeed vital.... The appointment is rather the result of collective, constitutional process. It is a participatory constitutional function. It is, perhaps, inappropriate to refer to any 'power' or 'right' to appoint Judges. It is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories.... What Endmond Bruke said is to be recalled. :

All persons possessing a position of power ought to be strongly and awfully impressed with an idea that they act in trust and are to account for their conduct in that trust to the one great Master, Author and Founder of Society.

(emphasis supplied)

16. In view of the fact that the constitutional functionaries to whom the task has been entrusted discharge a 'participatory constitutional function', it is instructive to recall the prophetic warning of Dr. Rajendra Prasad in his speech, President of the Constituent Assembly, while moving for adoption of the Constitution of India. He said : We have prepared a democratic Constitution. But successful working of democratic institutions requires in those who have to work them willingness to respect the viewpoints of others, capacity for compromise and accommodation. Many things which cannot be written in a Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions. The way in which we have been able to draw this Constitution without taking recourse to voting and to divisions in lobbies strengthens that hope.

Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it.... If the people who are elected are capable and men of character and integrity, they would be able to make the beat even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. There is a fissiparous tendency arising out of various elements in our life. We have communal differences, caste differences, language differences, provincial differences and so forth. It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are bom of these differences. We can only hope that the country will throw up such men in abundance.... In India today I feel that the work that confronts us is even more difficult than the work which we had when we ware engaged in the struggle. We did not have then any conflicting claims to reconcile, no leaves and fishes to distribute, no powers to share. We have all these now, and the temptations are really great. Would to God that we shall have the wisdom and the strength to rise above them, and to serve the country which we have succeeded in liberating.

17. The need for judicial determination of this controversy has arisen only because the warning of Dr. Rajendra Prasad does not appear to have been duly heeded by the functionaries entrusted with the constitutional obligation of properly composing the higher judiciary, and ensuring its satisfactory functioning, for the administration of justice in the country. The adverse agnesauence of this failure is manifested in many ways.

18. It is well known that the appointment of superior Judges is from amongst persons of mature age with known background and reputation in the legal profession. By that time the personality is fully developed and the propensities and background of the appointee are well known. The collective wisdom of the constitutional functionaries involved in the process of appointing superior Judges is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry. It is not unlikely that the care and attention expected from them in the discharge of this obligation has not been bestowed in all cases. It is, therefore, time that all the constitutional functionaries involved in the process of appointment of superior Judges should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment can be made. This is not difficult to achieve.

19. The question of primacy of the role of the Chief Justice of India in the context of appointment of Judges in the Supreme Court and the High Courts must be considered in this backdrop for the proper picture of the constitutional scheme to emerge from the mixture of various hues, to achieve the constitutional purpose of selecting the best available for composition of the Supreme Court and the High Courts, so essential to ensure the independence of the judiciary, and, thereby, to preserve democracy. A fortiori any construction of the constitutional provisions which conflicts with this constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution and, therefore, an alien concept.

20. It is with this perception that the nature of primacy, if any of the Chief Justice of India, in the present context, has to be examined in the constitutional scheme. The hue of the word 'consultation', when the consultation is with the Chief Justice of India as the head of the Indian Judiciary, for the purpose of composition of higher judiciary, has to be distinguished from the colour the same word 'consultation' may take in the context of the executive associated in that process to assist in the selection of the best available material.

21. In S.P. Gupta, the majority comprising of Bhagwati, J. (as he then was), Fazal Ali, J., Desai, J. and Venkataramiah, J. (as he then was), took the view, in substance that the opinion of the Chief Justice of India does not have primacy in the matter of appointments of Judges of the Supreme Court and the High Courts; that the primacy is with the Central Government which is to take the decision after consulting all the constitutional functionaries; and the Central Government is not sound to act in accordance with the opinion of all the constitutional functionaries consulted, even if their opinion be identical. It was also held in S.P. Gupta that for initiation of the proposal for appointment of a Judge of the Supreme Court or a High Court, there could not be a blanket embargo on the executive initiating the proposal, even though it would be appropriate that the executive's right to initiate an appointment should be limited to suggesting appropriate names to the Chief Justice of the High Court or the Chief Justice of India. It is this view of the majority in S.P. Gupta and, particularly, the same literal meaning given to the word 'consultation' in Articles 124(2) and 217(1) in relation to all consultees, together with the final authority given to the Central Government in the matter of appointments, which gives rise to the occasion for its reconsideration.

HEADNOTE: M filed a suit at Asansol against H for recovery of money. Later, H filed a counter suit at Indore against M for recovery of money. In the Asansol suit one of the defences raised by H was that the Asansol court had no jurisdiction to entertain the suit. H applied to the Asansol court to stay the suit but the court refused the prayer. An appeal to the Calcutta High Court against the refusal to stay was dismissed with the direction that the preliminary issue of jurisdiction should be disposed of by the trial court immediately. Thereupon, H applied to the Indore court for an injunction to restrain M from proceeding with the Asansol suit pending the disposal of the Indore suit and the court purporting to act under O. 39 Code of Civil Procedure granted the injunction. M appealed to the Madhya Bharat High Court which dismissed the appeal holding that though O. 39 was not applicable to the case the order of injunction could be made under the inherent powers of the court under s. 151 Code of Civil Procedure.

Held, that the order of injunction was wrongly granted and should be vacated.

Per, Wanchoo, Das Gupta, and Dayal,JJ.-The Civil courts had inherent power to issue temporary injunctions in cases which were not covered by the provisions of O. 39 Civil Procedure Code. The provisions of the Code were not exhaustive. There was no prohibition in s. 94 against the grant of a temporay injunction in circumstances not covered by O. 39. But inherent powers were not to be exercised when their exercise was in conflict with the express provisions of the Code or was against the intention of the legislature. Such powers were to be exercised in very exceptional circumstances. A plaintiff of a suit in another jurisdiction could only be restrained from proceeding with his suit if the suit was vexatious and useless. It was not so in the present case. It was proper that the issue as to jurisdiction should be decided by the Asansol court as directed by the Calcutta High Court. The Indore court could not decide this issue. Beside, it was open to the Asansol court to ignore the order of the Indore court and to proceed with the suit. This would place M in an impossible position. An order of a court should not lead to such a result.

Per, Shah, J.-Civil courts have no inherent power to issue injunctions in case not covered by O. 39, rr. 1 and 2 Code of Civil Procedure. The power of civil courts, other than Chartered High Courts, to issue injunctions must be found within the terms of s. 94 and O. 39, rr. 1 and 2. Where an express provision is made to meet a particular situation the Code must be observed and departure therefrom is not permissible. Where the Code deals expressly with a particular matter the provision should normally be regarded as exhaustive.

Padam Sen v. State of U. P. [1961] 1 S. C. R. 884, relied upon.

JUDGMENT:CIVIL APPELLATE JURISDICTION: Civil Appeal No. 346 of 1958.

Appeal by special leave from the judgment and order dated May 10, 1955, of the former Madhya Bharat High Court in Misc. Appeal No. 26 of 1954.

S. N. Andley, Rameshwar Nath and P. L. Vohra, for the appellant.

S. T. Desai, K. B. Bhatt and B. R. L.

Iyengar, for the respondent.

1961. November 16. The Judgment of Wanchoo, Das Gupta and Dayal,JJ., was delivered by Dayal J. Shah J., delivered a separate Judgment.

RAGHUBUR DAYAL, J.-The appellant and the respondent entered into a partnership at Indore for working coal mines at Kajora gram (District Burdwan) and manufacture of cement etc., in the name and style of 'Diamond Industries'. The head office of the partnership was at Indore. The partnership was dissolved by a deed of dissolution dated August 22, 1945. Under the terms of this deed, the appellant made himself liable to render full, correct and true account of all the moneys advanced by the respondent and also to render accounts of the said partnership and its business, and was held entitled to 1/4th of Rs. 4,00,000/- solely contributed by the respondent toward the capital of the partnership. He was, however, not entitled to get this amount unless and until he had rendered the accounts and they had been checked and audited.

The second proviso at the end of the convenants in the deed of dissolution reads:

"Provided however and it is agreed by and between the parties that as the parties entered into the partnership agreement at Indore (Holker State) all disputes and differences whether regarding money or as to the relationship or as to their rights and liabilities of the parties hereto in respect of the partnership hereby dissolved or in respect of question arising by and under this document shall be decided amicably or in court at Indore and at nowhere else."On September 29, 1945, a registered letter on behalf of the respondent was sent to the appellant. This required the appellant to explain to and satisfy the respondent at Indore as to the accounts of the said colliery within three months of the receipt of the notice. It was said in the notice that the accounts submitted by the appellant had not been properly kept and that many entries appeared to be wilfully falsified, evidently with malafide intentions and that there appeared in the account books various false and fictitious entries causing wrongful loss to the respondent and wrongful gain to the appellant. The appellant sent a reply to this notice on December 5, 1935, and denied the various allegations, and requested the respondent to meet him at Asansol or Kajoraram on any day suitable to him, within ten days from the receipt of that letter.

On August 18, 1948, the appellant instituted Suit M. S. No. 33 of 1948 in the Court of the Subordinate Judge at Asansol against the respondent for the recovery of Rs. 1,00,000/- on account of his share in the capital and assests of the partnership firm 'Diamond Industries' and Rs. 18,000/- as interest for detention of the money or as damages or compensation for wrongful withholding of the payment. In the plaint he mentioned about the respondent's notice and his reply and to a second letter on behalf of the respondent and his own reply thereto. A copy of the deed of dissolution, according to the statement in paragraph 13 of the plaint, was filed along with it.

On October 27, 1948, respondent filed a petition under s. 34 of the Arbitration Act in the Asansol Court praying for the stay of the suit in view of the arbitration agreement in the original deed of partnership. This application was rejected on August 20, 1949.

Meanwhile, on January 3, 1949, the respondent filed Civil Original Suit No. 71 of 1949 in the Court of the District Judge, Indore, against the appellant, and prayed for a decree for Rs. 1,90,519-0-6 against the appellant and further interest on the footing of settled accounts and in the alternative for a direction to the appellant to render true and full accounts of the partnership.

On November 28, 1949, the respondent filed his written statement in the Asansol Court. Paragraphs 19 and 21 of the written statement are:

"19. With reference to paragraph 21 of the plaint, the defendant denies that the plaintiff has any cause of action against the defendant or that the alleged cause of action, the existence of which is denied, arose at Kajora Colliery. The defendant craves reference to the said deed of dissolution whereby the plaintiff and the defendant agreed to have disputes, if any, tried in the Court at Indore. In the circumstances, the defendant submits that this Court has no jurisdiction to try and entertain this suit.21. The suit is vexatious, speculative, oppressive and is instituted malafide and should be dismissed with costs."Issues were struck on February 4, 1950. The first two issues are:

"1. Has this Court jurisdiction to entertain and try this suit?2. Has the plaintiff rendered and satisfactorily explained the accounts of the partnership in terms of the deed of dissolution of partnership ?"In December 1951, the respondent applied in the Court at Asansol for the stay of that suit in the exercise of its inherent powers. The application was rejected on August 9, 1952. The learned Sub-Judge held:

"No act done or proceedings taken as of right in due course of law is 'an abuse of the process of the Court' simply because such proceeding is likely to embarass the other party."He therefore held that there could be no scope for acting under s. 151, Code of Civil Procedure, as s. 10 of that Code had no application to the suit, it having been instituted earlier than the suit at Indore. The High Court of Calcutta confirmed this order on May 7, 1953, and said:

"We do not think that, in the circumstance of these cases and on the materials on record, those orders ought to be revised. We would not make any other observation lest it might prejudice any of the parties."The High Court further gave the following direction:

"As the preliminary issue No.1 in the two Asansol suits have been pending for over two years, it is only desirable that the said issues should be heard out at once. We would, accordingly, direct that the hearing of the said issues should be taken up by the learned Subordinate Judge as expeditiously as possible and the learned Subordinate Judge will take immediate steps in that direction."Now we may refer to what took place in the Indore suit till then. On April 28, 1950, the appellant applied to the Indore Court for staying that suit under ss. 10 and 151 Code of Civil Procedure.

The application was opposed by the respondent on three grounds. The first ground was that according to the term in the deed of dissolution, that Court alone could decide the disputes. The second was that under the provisions of the Civil Procedure Code in force in Madhya Bharat, the court at Asansol was not an internal Court and that the suit filed in Asansol Court could not have the effect of staying the proceedings of that suit. The third was that the two suits were of different nature, their subject matter and relief claimed being different. The application for stay was rejected on July 5, 1951. The Court mainly relied on the provisions of the Second proviso in the deed of dissolution. The High Court of Madhya Bharat confirmed that order on August 20, 1953.

The position then, after August 20, 1953, was that the proceedings in both the suits were to continue, and that the Asansol Court had been directed to hear the issue of jurisdiction at an early date.

It was in these circumstances that the respondent applied under s. 151, Code of Civil Procedure on September 14, 1953, to the Indore Court, for restraining the appellant from continuing the proceedings in the suit filed by him in the Court at Asansol. The respondent alleged that the appellant filed the suit at Asansol in order to put him to trouble, heavy expenses and wastage of time in going to Asansol and that he was taking steps for the continuance of the suit filed in the Court of the Subordinate Judge of Asansol. The appellant contested this application and stated that he was within his rights to institute the suit at Asansol, that that Court was competent to try it and that the point had been decided by overruling the objections raised by the respondent and that the respondent's objection for the stay or proceedings in the Court at Asansol had been rejected by that Court. He denied that his object in instituting the suit was to cause trouble and heavy expenses to the respondent.

It may be mentioned that the respondent did not state in his application that his application for the stay of the suit at Asansol had been finally dismissed by the High Court of Calcutta and that that Court had directed the trial Court to decide the issue of jurisdiction at an early date. The appellant, too, in his objection, did not specifically state that the order rejecting the respondents's stay application had been confirmed by the High Court at Calcutta and that that Court had directed for an early hearing of the issue of jurisdiction.

The learned Additional District Judge, Indore, issues interim injunction under O. XXXIX, Code of Civil Procedure, to the appellant restraining him from proceeding with his Asansol suit pending decision of the Indore suit, as the appellant was proceeding with the suit at Asansol in spite of the rejection of his application for the stay of the suit at Indore, and , as the appellant wanted to violate the provision in the deed of dissolution about the Indore Court being the proper forum for deciding the dispute between the parties. Against this order, the appellant went in appeal to the High Court of Judicature at Madhya Bharat, contending that the Additional District Judge erred in holding that he was competent to issue such an interim injunction to the appellant under O. XXXIX of the Code of Civil Procedure and that it was a fit case for the issue of such an injunction and that, considering the provisions of O. XXXIX, the order was without jurisdiction.

The High Court dismissed the appeal by its order dated May 10, 1955. The learned Judges agreed with the contention that O. XXXIX, r. 1 did not apply to the facts of the case. They, however, held that the order of injunction could be issued in the exercise of the inherent powers of the Court under s. 151, C.P.C. It is against this order that the appellant has preferred this appeal, by special leave.

On behalf of the appellant, two main questions have been raised for consideration. The first is that the Court could not exercise its inherent powers when there were specific provisions in the Code of Civil Procedure for the issue of interim injunctions, they being s. 94 and O.XXXIX. The other question is whether the Court, in the exercise of its inherent jurisdiction, exercised its discretion properly, keeping in mind the facts of the case. The third point which came up for discussion at the hearing related to the legal effect of the second proviso in the deed of dissolution on the maintainability of the suit in the Court at Asansol.

We do not propose of express any opinion on this question of jurisdiction as it is the subject matter of an issue in the suit at Asansol and also in the suit at Indore and because that issue had not yet been decided in any of the two suits.

On the first question it is argued for the appellant that the provisions of cl. (c) of s. 94, Code of Civil Procedure make it clear that interim injunctions can be issued only if a provisions for their issue is made under the rules, as they provide that a Court may, if it is so prescribed, grant temporary injunctions in order to prevent the ends of justice from being defeated, that the word 'prescribed', according to s. 2, means 'prescribed by rules' and that rr. 1 and 2 of O.XXXIX lay down certain circumstances in which a temporary injunction may be issued.

There is difference of opinion between the High Court on this point. One view is that a Court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order XXXIX of the Code: Varadacharlu v. Narsimha Charlu (1), Govindarajulu v. Imperial Bank of India (2), Karuppayya v. Ponnuswami (3), Murugesa Mudali v. Angamuthu Mudali (4) and Subramanian v. Seetarama (5). The other view is that a Court can issue an interin injunction under circumstances which are not covered by Order XXXIX of the Code, if the Court is of opinion that the interests of justice require the issue of such interin injunction: Dhaneshwar Nath v. Ghanshyam Dhar (6), Firm Bichchha Ram v. Firm Baldeo Sahai (7),Bhagat Singh v. jagbir Sawhney (8) and Chinese Tannery owners' Association v. Makhan Lal (9). We are of opinion that the latter view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of O.XXXIX, Code of Civil Procedure. There is no such expression in s. 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by O. XXXIX or by any rules made under the Code. It is well-settled that the provisions of the Code are not exhaustive for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression 'if it is so prescribed' is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. if the provisions of s. 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. it is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of s. 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent powers.

There is nothing in O. XXXIX, rr. 1 and 2, which provide specifically that a temporary injunction is not to be issued in cases which are not mentioned in those rules. The rules only provide that in circumstances mentioned in them the Court may grant a temporary injunction.

Further, the provisions of s. 151 of the Code make it clear that the inherent powers are not controlled by the provisions of the Code. Section 151 reads:

"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of the justice or to prevent abuse of the process of the Court."A similar question about the powers of the Court to issue a commission in the exercise of its powers under s. 151 of the Code in circumstances not covered by s. 75 and Order XXVI, arose in Padam Sen v. The State of Uttar Pradesh (1) and this Court held that the Court can issue a commission in such circumstances. It observed at page 887 thus:

"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purpose mentioned in s. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature."These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of these powers is not because these powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justices.

In the above case, this Court did not uphold the order of the Civil Court, not coming under the provisions of order XXVI, appointing a commissioner for seizing the account books of the plaintiff on the application of the defandants. The order was held to be defective not because the Court had no power to appoint a commissioner in circumstances not covered by s. 75 and O. XXVI, but because the power was exercised not with respect to matters of procedure but with respect to a matter affecting the substantive rights of the plaintiff. This is clear from the further observations made at page 887. This Court said:

"The question for determination is whether the impugned order of the Additional Munsif appointing Shri Raghubir Pershad Commissioner for seizing the plaintiff's books of account can be said to be an order which is passed by the Court in the exercise of its inherent powers. The inherent powers saved by s. 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure."The case reported as Maqbul Ahmad Pratap Narain Singh does not lay down that the inherent powers of the Court are controlled by the provisions of the Code. It simply holds that the statutory discretion possessed by a Court in some limited respects under an Act does not imply that the Court possesses a general discretion to dispense with the provisions of that Act. In that case, an application for the preparation of a final decree was presented by the decree-holder beyond the period of limitation prescribed for the presentation of such an application. It was however contended that the Court possessed some sort of judicial discretion which would enable it to relieve the decree-holder from the operation of the Limitation Act in a case of hardship. To rebut this contention, it was said at page 87:

"It is enough to say that there is no authority to support the proposition contended for. In their Lordships' opinion it is impossible to hold that, in a matter which is governed by Act, an Act which in some limited respects gives the Court a statutory discretion, there can be implied in the Court, outside the limits of the Act, a general discretion to dispense with its provisions. It is to be noted that this view is supported by the fact that s. 3 of the Act is peremptory and that the duty of the Court is to notice the Act and give effect to it, even though it is not referred to in the pleadings".These observations have no bearing on the question of the Court's exercising its inherent powers under s. 151 of the Code. The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.

Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code.

We therefore repel the first contention raised for the appellant.

On the second question, we are of opinion that in view of the facts of the case, the Courts below were in error in issuing a temporary injunction to the appellant restraining him from proceeding with the suit in the Asansol Court.

The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure.

The question of issuing an order to a party restraining him from proceeding with any other suit in a regularly constituted Court of law deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice.

In this connection, reference may usefully be made to what was said in Cohen v. Rothfield (1) and which case appears to have influenced the decision of the Courts in this country in the matter of issuing such injunction orders. Scrutton, L. J., said at page 413:

"Where it is proposed to stay an action on the ground that another is pending, and the action to be stayed is not in the Court asked to make the order, the same result is obtained by restraining the person who is bringing the second action from proceedings with it. But, as the effect is to interfere with proceedings in another jurisdiction, this power should be exercised with great caution to avoid even the appearance of undue interference with another Court".And again, at page 415:

"While, therefore, there is jurisdiction to restrain a defendant from suing abroad, it is a jurisdiction very rarely exercised, and to be resorted to with great care and on ample evidence produced by the applicant that the action abroad is really vexatious and useless."The principle enunciated for a plaintiff in a earlier instituted suit to successfully urge a restraint order against a subsequent suit instituted by the defendant, is stated thus in this case, at page 415:

"It appears to me that unless the applicant satisfies the Court that no advantage can be gained by the defendant by proceeding with the action in which he is plaintiff in another part of the King's dominions, the Court should not stop him from proceeding with the only proceedings which he, as plaintiff, can control. The principle has been repeatedly acted upon."The injunction order in dispute is not based on any such principle. In fact, in the present case, it is the defendant of the previously instituted suit that has obtained the injunction order against the plaintiff of the previously instituted suit.

The considerations which would make a suit vexatious are well explained in Hyman v. Helm (1). In that case, the defendant, in an action before the Chancery Division of the High Court brought an action against the plaintiffs in San Francisco. The plaintiffs, is an action in England, prayed to the Court to restrain the defendants from proceeding further with the action in San Francisco. It was contended that it was vexatious for the defendants to bring the action in San Francisco as the witnesses to the action were residents of England, the contract between the parties was an English contract and that its fulfilment took place is England. In repelling the contention that the defendants' subsequent action in San Francisco was vexatious, Brett, M. R., said at page 537:

"If that makes an action vexatious it would be a ground for the interference of the Court, although there were no action in England at all, the ground for alleging the action in San Francisco to be vexatious being that it is brought in an inconvenient place. But that is not the sort of vexation on which an English Court can act.It seems to me that where a party claims this interference of the Court to stop another action between the same parties, it lies upon him to shew to the Court that the multiplicity of actions is vexatious, and that the whole burden of proof lies upon him. He does not satisfy that burden of proof by merely she-wing that there is a multiplicity of actions, he must go further. If two actions are brought by the same plaintiff against the same defendant in England for the same cause of action, then, as was said in Mchonry v. Lewis (22 Ch. D. 397) and the case of the Peruvian Guano Company v. Bockwoldt (23 Ch. D. 225), prima facie that is vexatious, and therefore the party who complains of such a multiplicity of actions had made out a prima facie case for the interference of the Court. Where there is an action by a plaintiff in England, and a crossaction by a defendant in England, whether the same prima facie case of vaxation arises is a much more difficult point to decide and I am not prepared to say that it does."It should be noticed that this question for an action being vexatious was being considered with respect to the subsequent action brought by the defendant in the previously instituted suit and when the restraint order was sought by the plaintiff of the earlier suit. In the case before us, it is the plaintiff of the subsequent suit who seeks to restrain the plaintiff of the earlier suit from proceeding with his suit. This cannot be justified on general principles when the previous suit has been instituted in a competent Court.

The reasons which weighed with the Court below for maintaining the order of injunction may be given in its own words as follows:

"In the plaint filed in the Asansol Court the defendant has based his claim on the deed of dissolution dated 22, 1945, but has avoided all references to the provisions regarding the agreement to place the disputes before the Indore Courts. It was an action taken by the present defendant in anticipation of the present suit and was taken in flagrant breach of the terms of the contract. In my opinion, the defendant's action constitutes misuse and abuse of the process of the Court."The appellant attached the deed of dissolution to the plaint he filed at Asansol. Of course, he did not state specifically in the plaint about the proviso with respect to the forum for the decision of the dispute. Even if he had mentioned the term, that would have made no difference to the Asansol Court entertaining the suit, as it is not disputed in these proceedings that both the Indore and Asansol Courts could try the suit in spite of the agreement. The appellant's institution of the suit at Asansol cannot be said to be in anticipation of the suit at Indore, which followed it by a few months. There is nothing on the record to indicate that the appellant knew, at the time of his instituting the suit, that the respondent was contemplating the institution of a suit at Indore. The notices which the respondent gave to the appellant were in December 1945. The suit was filed at Asansol in August 1948, more than two years and a half after the exchange of correspondence referred to in the plaint filed at Asansol.

In fact, it is the conduct of the respondent in applying for the injunction in September 1953, knowing full well of the order of the Calcutta High Court confirming the order refusing stay of the Asansol suit and directing that Court to proceed with the decision of the issue of jurisdiction at an early date, which can be said to amount to an abuse of the process of the Court. It was really in the respondent's interest if he was sure of his ground that the issue of jurisdiction be decided by the Asansol Court expeditiously, as ordered by the Calcutta High Court in May 1953. If the Asansol Court had clearly no jurisdiction to try the suit in view of the terms of the deed of dissolution, the decision of that issue would have finished the Asansol suit for ever. He, however, appears to have avoided a decision of that issue from that Court and, instead of submitting to the order of the Calcutta High Court, put in this application for injunction. It is not understandable why the appellant did not clearly state in his objection to the application what the High Court of Calcutta had ordered. That might have led the consideration of the question by the Indore Court in a different perspective.

It is not right to base an order of injunction, under s. 151 of the Code, restraining the plaintiff from proceeding with his suit at Asansol, on the consideration that the terms of the deed of dissolution between the parties make it a valid contract and the institution of the suit at Asansol is in breach of it. The question of jurisdiction of the Asansol Court over the subject matter of the suit before it will be decided by that Court. The Indore Court cannot decide that question. Further, it is not for the Indore Court to see that the appellant observes the terms of the contract and does not file the suit in any other Court. It is only in proper proceedings when the Court considers alleged breach of contract and gives redress for it.

For the purposes of the present appeal, we assume that the jurisdiction of the Asansol Court is not ousted by the provisions of the proviso in the deed of dissolution, even though that proviso expresses the choice of the parties for having their disputes decided in the Court at Indore. The appellant therefore could choose the forum in which to file his suit. He chose the Court at Asansol, for his suit. The mere fact that Court is situate at a long distance from the place of residence of the respondent is not sufficient to establish that the suit has been filed in that Court in order to put the respondent to trouble and harassment and to unnecessary expense.

It cannot be denied that it is for the Court to control the proceedings of the suit before it and not for a party, and that therefore, an injunction to a party with respect to his taking part in the proceedings of the suit would be putting that party in a very inconvenient position.

It has been said that the Asansol Court would not act in a way which may put the appellant in a difficult position and will show a spirit of cooperation with the Indore Court. Orders of Court are not ordinarily based on such considerations when there be the least chance for the other Court not to think in that way. The narration of facts will indicate how each Court has been acting on its own view of the legal position and the conduct of the parties.

There have been case in the past, though few, in which the Court took no notice of such injunction orders to the party in a suit before them. They are: Menon v. Parvathi Ammal(1), Harbhagat Kaur v. Kirpal Singh (2) and Shiv Charan Lal v. Phool Chand (3). In the last case, the Agra Court issued an injunction against the plaintiff of a suit at Delhi restraining him from proceeding with that suit. The Delhi Court, holding that the order of the Agra Court did not bind it, decided to proceed with the suit. This action was supported by the High Court. Kapur J., observed at page 248:

"On the facts as have been proved it does appear rather extra-ordinary that a previously instituted suit should be sought to be stayed by adopting this rather extraordinary procedure."It is admitted that the Indore Court could not have issued an induction or direction to the Asansol Court not to proceed with the suit. The effect of issuing an injunction to the plaintiff of the suit at Asansol, indirectly achieves the object which an injunction to the Court would have done. A court ought not to achieve indirectly what it cannot do directly. The plaintiff, who has been restrained, is expected to bring the restraint order to the notice of the Court. If that Court, as expected by the Indore Court, respects the injunction order against the appellant and does not proceed with the suit, the injunction order issued to the appellant who is the plaintiff in that suit is as effective an order for arresting the progress of that suit as an injunction order to the Court would have been. If the Court insists on proceeding with the suit, the plaintiff will have either to disobey the restraint order or will run the risk of his suit being dismissed for want of prosecution. Either of these results is a consequence which an order of the Court should not ordinarily lead to.

The suit at Indore which had been instituted later, could be stayed in view of s. 10 of the Code. The provisions of that section are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers under s. 151 is not justified. The provisions of s. 10 do not become inapplicable on a Court holding that the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract. It does not appear correct to say, as has been said in Ram Bahadur v. Devidayal Ltd. (1) that the Legislature did not contemplate the provisions of s. 10 to apply when the previously instituted suit be held to be instituted in those circumstances. The provisions of s. 35A indicate that the Legislature was aware of false or vexatious claims or defences being made, in suits, and accordingly provided for compensatory cost. The Legislature could have therefore provided for the non-application of the provisions of s. 10 in those circumstances, but it did not. Further, s. 22 of the Code provides for the transfer of a suit to another Court when a suit which could be instituted in any one of two or more Courts is instituted in one of such Courts. In view of the provisions of this section, it was open to the respondent to apply for the transfer of the suit at Asansol to the Indore Court and, if the suit had been transferred to the Indore Court, the two suits could have been tried together. It is clear, therefore, that the Legislature had contemplated the contingency of two suits with respect to similar reliefs being instituted and of the institution of a suit in one Court when it could also be instituted in another Court and it be preferable, for certain reasons, that the suit be tried in that other Court.

In view of the various considerations stated above, we are of opinion that the order under appeal cannot be sustained and cannot be said to be an order necessary in the interests of justice or to prevent the abuse of the process of the Court. We therefore allow the appeal with costs, and set aside the order restraining the appellant from proceeding with the suit at Asansol.

SHAH, J.-I have perused the judgment delivered by Mr. Justice Dayal. I agree with the conclusion that the appeal must succeed but I am unable to hold that civil courts generally have inherent jurisdiction in cases not covered by rr. 1 and 2 of O. 39, Civil Procedure Code to issue temporary injunctions restraining parties to the proceedings before them from doing certain acts. The powers of courts, other than the Chartertd High Courts, in the exercise of their ordinary original Civil jurisdiction to issue temporary injunctions are defined by the terms of s. 94(1)(c) and O. 39, Civil Procedure Code. A temporary injunction may issue if it is so prescribed by rules in the Code. The provisions relating to the issue of temporary injunctions are to be found in O. 39 rr. 1 and 2: a temporary injunction may be issued only in those cases which come strictly within those rules, and normally the civil courts have no power to issue injunctions by transgressing the limits prescribed by the rule.

It is true that the High Courts constituted under Charters and exercising ordinary original jurisdiction do exercise inherent jurisdiction to issue an injunction to restrain parties in a suit before them from proceedings with a suit in another court, but that is because the Chartered High Courts claim to have inherited this jurisdiction from the Supreme Courts of which they were successors. This jurisdiction would be saved by s. 9 of the Charter Act (24 and 25 Vict. c.

104) of 1861, and in the Code of Civil Procedure, 1908 it is expressly provided by s. 4. But the power of the civil courts other than the Chartered High Courts must be found within s. 94 and O. 39 rr. 1 and 2 of the Civil Procedure Code.

The Code of Civil Procedure is undoubtedly not exhaustive: it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders(as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, an departure therefrom is not permissible. As observed in L. R. 62 I. A. 80 (Maqbul Ahmed v. Onkar Pratab) "It is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the court a statutory discretion, there can be implied in court, outside the limits of the Act a general discretion to dispense with the provisions of the Act." Inherent jurisdiction of the court to make order ex debito justitiae is undoubtedly affirmed by s. 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals Expressly with a particular matter, the provision should normally be regarded as exhaustive.

Power to issue an injunction is restricted by s. 94 and O. 39, and it is not open to the civil court which is not a Chartered High Court to exercise that power ignoring the restriction imposed there by, in purported exercise of its inherent jurisdiction. The decision of this Court in Padam Sen v. The State of Uttar Pradesh(1) does not assist the case of the appellant. In Padam Sen's case this Court was called upon is a original appeal to consider whether an order of a Munsiff appointing a commissioner for seizing certain account books of the plaintiff in a suit pending before the Munsiff was an order authorised by law. It was the case for the prosecution that the appellants offered a bribe to the commissioner as consideration for being allowed to tamper with entries therein, and thereby the appellants committed an offence punishable under s. 165A of the Indian Penal Code. This Court held that the commissioner appointed by the civil court in exercise of powers under O. 26 C. P. Code did not hold any office as a public servant and the appointment by the Munsiff being without jurisdiction, the commissioner could not be deemed to be a public servant. In dealing with the argument of counsel for the appellants that the civil court had inherent powers to appoint a commissioner in exercise of authority under s. 151 Civil Procedure Code for purposes which do not fall within the provisions of s. 75 and O. 26 Civil Procedure Code, the Court observed:

"Section 75 of the Code empowers the Court to issue a commission, subject to conditions and limitations which may be prescribed, for four purposes, viz., for examining any person, for making or adjusting accounts and for making a partition. Order XXVI lays down rules relating to the issue of commissions and allied matters. Mr. Chatterjee, learned counsel of the appellants, has submitted that the powers of a Court must be found within the four corners of the Code and that when the Code has expressly dealt with the subject matter of commissions in s. 75 the Court cannot invoke its inherent powers under s. 151 and thereby add to its powers. On the other hand, it is submitted for the State, that the Code is not exhaustive and the Court, in the exercise of its inherent powers, can adopt any procedure not prohibited by the Code expressly or by necessary implication if the Court considers it necessary for the ends of justice or to prevent abuse of the process of the Court. x x xx x x xxThe inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in s. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary or different from the procedure expressly provided in the Code."The Court in that case held that in exercise of the powers under s. 151 of the Code of Civil Procedure, 1908 the Court cannot issue a commission for seizing books of account of plaintiff-a purpose for which a commission is not authorized to be issued by s. 75.

The principle of the case is destructive of the submission of the appellants. Section 75 empowers the Court to issue a commission for purposes specified therein: even though it is not so expressly stated that there is no power to appoint a commissioner for other purposes, a prohibition to that effect is, in the view of the Court in Padam Sen's case, implicit in s. 76. By parity of reasoning, if the power to issue injunctions may be exercised, if it is prescribed by rules in the Orders in Schedule I, it must he deemed to be not exercisable in any other manner or for purposes other than those set out in O. 39 rr. 1 and 2.

The inherent power of the court is in addition to and complimentary to the powers expressly conferred, but that power will not be exercised if its exercise is inconsistent with, or comes in conflict with any of the powers expressly or by necessary interpretation conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner provided by the said provision. The limitations imposed by construction on the provision of section 151 do not control the undoubted power of the court to make a suitable order to prevent abuse of the process of the court.

ACT: Code of Civil Procedure (Act 5 of 1908), s. 151 and O.XXIX r. 3--Director of Company summoned to answer material questions--company when responsible for his non-appearance- Inherent powers of court to prevent abuse of process of court--scope of.

HEADNOTE:The first respondent filed a suit against the appellant company and one R for recovery of a sum of money. The court acting under O.XXIX r. 3 of the Code of Civil Procedure directed J one of the directors of the company to appear before it and answer certain material questions in relation to the suit and when he did not appear the appellant was directed to produce him, with the same result. The Court after giving notice to the appellant struck off its defence in purported exercise of its inherent powers under s. 151 of the Code. The High Court dismissed the appellant's revision petition whereupon it appealed to this Court by special leave. It was contended on behalf of the appellant that inherent power could not be invoked in the circumstances of the case.

HELD : (i) Whatever limitations are imposed by construction on the provisions of s. 151 of the Code, they do not control the undoubted power of the court conferred under s. 151 of the Code to make a suitable order to prevent the abuse of the process of the Court. [860]

(ii)There is nothing in O.XXIX of the Code which expressly or by necessary implication, precludes the exercise of the inherent power of the Court under s. 151 of the Code. In a case of default made by a director who failed to appear in court when he was so required under the aforesaid rule, the court can make a suitable consequential order under s. 151 of the Code as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. [861 E] (iii)'Any director' in O.XXIX r. 3 need not be the same director who has signed and verified a pleading or on whom summons had been served. He can be any one of the directors who will be in a position to answer material questions relating to the suit. [861 A-B]

(iv)In the present case the court was justified in striking off the defence of the appellant company. Unless there was a finding of collusion between the appellant and the director in that the former prevented the latter from appearing in court it was difficult to make the company constructively liable for the default of one of its directors. A director's acts outside the scope of his powers could not bind the company and it was not possible to hold that the director in refusing to respond to the notice given by the court wag acting within the scope of the powers conferred on him. [861H-862 D]

JUDGMENT:CIVIL APPELLATE JURISDICTION : Civil Appeal No. 166 of 1966. Appeal by special leave from the order dated August 27, 1965 of the Punjab High Court (Circuit Bench) at Delhi in Civil Revision No. 289-D of 1965.

The Judgment of the Court was delivered by Subba Rao. J.--This appeal by special leave is directed against the order of the Punjab High Court confirming that of the Subordinate Judge, Delhi, striking out the defence of the appellant tinder s. 151 of the Code of civil Procedure, hereinafter called the Code.

Kanhaya Lal Bhargava, the 1st respondent, filed a suit on April 27, 1962, in the Court of the Subordinate Judge, First Class, Delhi, against Messrs. Ram Chand & Sons Sugar Mills Private Limited, the appellant, and one Ram Sarup for the recovery of a, sum of Rs. 45,112.94. Pending the suit, on October 27, 1964, the 1st respondent filed an application in the said court under O.XI, r. 21, of the Code, read with O.XXIX, r. 3, thereof, for striking off the defence or in the alternative for directing Jugal Kishore, a director of the Appellant-company, to appear in court on December 14, 1964. On December 3, 1964, the court made an order therein directing the said Jugal Kishore to be present in court on December 14, 1964, to answer material questions relating to the suit. The appellant took a number of adjournments to produce the said Jugal Kishore on the ground that the latter was ill. On February 3, 1965, the court gave the appellant a final opportunity to produce the said Jugal Kishore. Even so, the appellant took two more adjournments to produce him, but did not do so on the ground that he was ill. Finally on February 25, 1965, the court issued a notice to the 1st defendant, appellant herein, to show cause why his defence should not be struck off. On March 16, 1965, after hearing the arguments the court held that Jugal Kishore had failed to comply with the orders of the court and was persistent in his default in spite of chances given to him; and on that finding, it struck off the defence of the appellant. The High Court, on revision, held that Jugal Kishore did not appear in court in spite of orders to that effect and that the learned Subordinate Judge had Jurisdiction to strike out the defence of the appellant. It further negatived the contention of the appellant that it was not in its power to compel Jugal Kishore to appear in court on the ground that he was the director of the company and was under its control and, therefore, the appellant-company could not be heard to say CI/66---9 that one of the directors did not obey the orders of the court. Hence the present appeal.

The argument of Mr. S, N. Andley, learned counsel for the appellant, may be briefly stated thus: The Code of Civil Procedure provides express power for a court to strike out defence against a party under specified circumstances and, therefore, s. 151 thereof cannot be invoked to strike out the defence in other circumstances, for to do so will be to override the provisions of the Code. Order XXIX, r.3, of the Code does not empower the court to require the personal appearance of a director other than a director who signed and verified the pleading within the meaning of O.XXIX, r. 1 thereof.

Mr. Sen, learned counsel for the respondent, on the other hand contended that the court had ample jurisdiction to strike out the defence of a party if he was guilty of abuse of the process of the court. In the instant case, he contended Jugal Kishore, one of the permanent directors of the appellant-company had adopted a recalcitrant attitude in defying the orders of the court to be present for interrogation and, therefore, the Subordinate Judge rightly, after giving every opportunity for him to be present, struck off the appellant's defence.

Section 151 of the Code reads:

"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."The words of the section appear to be rather wide. But the decisions of this Court, by construction, limited the scope of the said section In Padam Sen v. The State of Uttar Pradesh (1) the question raised was whether a Munsif had inherent powers under s. 151 of the Code to appoint a commissioner to seize account books. This Court held that he had no such power. Raghubar Dayal, J., speaking for the Court, observed:

"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in s. 151 of the Code when the exercise of these powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or (1) [1961] 1 S.C.R 884,887.8 5 9 different from the procedure expressly provided in the Code".This Court again in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal(1) considered the question whether a court had inherent power under s. 151 of the Code to issue a temporary injunction restraining a party from proceeding with a suit in another State. In that context, Raghubar Dayal, J., after quoting the passage cited above from his earlier judgment, interpreted the said observations thus:

"These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in s. 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of these powers is not because these powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice."This Court again in Arjun Singh v. Mohindra Kumar(2) consi- dered the scope of s. 151 of the Code. One of the questions raised was whether an order made by a court under a situation to which O. IX, r. 7, of the Code did not apply, could be treated as one made under s. 151 of the Code. Rajagopala Ayyangar, J., made the following observations:

"It is common ground that the inherent power of the Court cannot override the express provisions of the law. in other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be expressed but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates."Having regard to the said decisions, the scope of the inherent power of a court under s. 151 of the Code may be defined thus: The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes (1) [1962] Supp. 1 S.C.R. 450, 461.

(2) [1964] 5 S.C.R. 946, 968.

8 60 into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of s.151 of the Code, they' do not control the undoubted power of the court conferred under s. 151 of the Code to make a suitable order to prevent the abuse of the process of the Court.

Now let us look at the relevant provisions of the Code.

Order XXIX. r. 1. In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

r.2 Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served--

(a) on the secretary, or on any director, or other principal officer of the corporation, or

(b) r. 3. The Court may, at any stage of the suit, require the personal appearance' of the secretary or of any director, or other principal officer of the corporation who may be able to answer material questions relating to the suit. The contention of the learned counsel for the appellant is that the director mentioned in r. 3 is the director mentioned in r. 1 thereof. To put it in other words, the director who signs and verifies the pleadings can only be required to appear personally to answer material questions relating to the suit. Though this contention appears to be plausible, it is not sound, Rules 1, 2 and 3, of O. XXIX of the Code use the words "any director". Under r. 1 thereof a director who is able to depose to the facts of the case may sign and verify the pleadings; under r. 2, a summons may be served upon any director; and under r. 3, any director who may be able to answer material questions relating to the suit may be required to appear personally before the court. The adjective "any" indicates that any one of the directors with the requisite qualifications, prescribed by rr. 1, 2 and 3 can perform the functions laid down in each of the rules respectively. One can visualize a situation where a director who signed and verified the pleadings may not be in a position to answer certain material questions relating to the suit.

If so, there is no reason why the director who may be able to answer such material questions is excluded from the scope of r. 3. Such an interpretation will defeat the purpose of the said rule. Therefore, "any director" in r. 3 need not be the same director who has signed and verified a pleading or on whom summons has been served. He can be any one of the directors who will be in a position to answer material questions relating to the suit.

Even so, learned counsel for the appellant contended that O.XXIX, r. 3, of the Code did not provide for any penalty in case the director required to appear in court failed to do so. By drawing an analogy from other provisions where a particular default carried a definite penalty, it was argued that in the absence of any such provision it must be held that the Legislature intentionally had not provided for any penalty for the said default. In this context the learned counsel had taken us through O.IX, r. 12, O. X, r. 4, O.XI, 21, O.XVI, r. 20, and O. XVIII, rr. 2 and 3 of the Code. No doubt under these provisions particular penalties have been provided for specific defaults. For certain defaults, the relevant Orders provide for making an ex parte decree or for striking out the defence. But it does not follow from these provisions that because no such consequential provision is found in O.XXIX, the court is helpless against a recalcitrant plaintiff or defendant who happens to be a company. There is nothing in O.XXIX of the Code. which, expressly or by necessary implication, precludes the exercise of the inherent power of the court under S. 151 of the Code. We are, therefore, of the opinion that in a case of default made by a director who failed to appear in court when he was so required under O.XXIX, r. 3, of the Code, the court can make a suitable consequential order under s. 151 of the Code as may be necessary for the ends of justice or to prevent abuse of the process of the court. The next question is whether the court can, as it did in the present case, strike off the defence of the appellant for the default made by its director to appear in court. Learned counsel for the respondent contended that both the courts in effect found that the director was guilty of a recalcitrant attitude and that he had abused the process of the court and, therefore, the Subordinate Judge had rightly exercised his inherent power in striking off the defence of the appellant, We are satisfied, as the courts below were, that Jugal Kishore, the director of the appellant-company, purposely for one reason or other, defied the orders of the court on the pretext of illness and had certainly abused the process of the court. The learned Subordinate Judge would have been well within his rights to take suitable action against him, but neither of the courts found that the appellant was responsible or instrumental for the director not attending the court. Unless there is a finding of collusion between the appellant and the director in that the former prevented the latter from appearing in court, we find it difficult to make the company constructively liable for the default of one of its directors. Many situations may be visualized when one of the directors may not obey the directions of the company or its board of directors or may be even working against its interests.

It cannot be disputed that a company and the directors of the company are different legal personalities. The company derives its powers from the memorandum of association. Some of the powers are delegated to the directors. For certain purposes they are said to be trustees and for some others to be the agents or managers of the company. It is not necessary in this case to define the exact relationship of a director qua the company. The acts of the directors within the powers conferred on them may be binding on the company. But their acts outside the said powers will not bind the company. It is not possible to hold that the director in refusing to respond to the notice given by the court was acting within the scope of the powers conferred on him. lie is only liable for his acts and not the company. If it was established that the company was guilty of abuse of the process of the court by preventing the director from attending the court, the court would have been justified in striking off the defence. But no such finding was given by the courts below.

The orders of the courts below are not correct. We set aside the said orders and direct the Subordinate Judge to proceed with the suit in accordance with law. The appeal is allowed, but, in the circumstances of the case, without costs.Appeal allowed.

These two writ petitions have been filed as Public Interest Litigations for mainly declaring sub-section (4) of Section 8 of the Representation of the People Act, 1951 as ultra viresthe Constitution.

The background facts2. The background facts relevant for appreciating the challenge to sub-section (4) of Section 8 of the Act are that the Constituent Assembly while drafting the Constitution intended to lay down some disqualifications for persons being chosen as, and for being, a member of either House of Parliament as well as a member of the Legislative Assembly or Legislative Council of the State. Accordingly, in the Constitution which was finally adopted by the Constituent Assembly, Article 102(1) laid down the disqualifications for membership of either House of Parliament and Article 191(1) laid down the disqualifications for membership of the Legislative Assembly or Legislative Council of the State.

These two Articles are extracted hereinbelow:102. Disqualifications for membership.

–(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—

(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

191. Disqualifications for membership.

– (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State— (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

[Explanation.—For the purposes of this clause], a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.

Leave granted. This appeal by the landlord (plaintiff in Eviction Suit No.2 of 1989 on the file of Munsiff, First, Samastipur, Bihar) is against the judgment dated 28.7.2003 passed by Patna High Court in MA No. 300/2002.

2. The appellant-plaintiff filed the said eviction suit against one Anugraha Narayan Singh and the District Congress Committee (I), Samastipur, (referred to as 'A.N. Singh' and 'DCC' respectively) on the following three grounds : (i) that the suit premises (house) was let out to A. N. Singh for his personal residential occupation and the said A.N. Singh had unauthorisedly sub-let a portion of the suit premises to DCC; (ii) that A.N. Singh had committed default in paying the rent and electricity charges; and (iii) that the suit premises was required for his personal use.

3. The defendants resisted the suit. They denied the allegation that the suit premises was let out personally to A.N.Singh for his residence. They contended that the premises was let out to A.N. Singh in his capacity as President of DCC for being used as the office of DCC, on a monthly rent of Rs.200/- (inclusive of electricity charges), and there was no default in paying the rent. They also denied the claim of the landlord that the suit premises was required for his own use.

4. The trial court decreed the suit by judgment and decree dated 6.6.1998 directing eviction and payment of arrears of rent and electricity charges. It held that A.N. Singh took the premises on rent in his personal capacity and not on behalf of DCC; and that a portion of the suit premises was sub-let to DCC without the consent of the landlord. The trial court also held that A.N. Singh had committed default in paying the rents and electricity charges.

5. Feeling aggrieved, A.N. Singh and DCC filed Eviction Appeal No.4 of 1998 on the file of the Additional District Judge, Samastipur (referred to as the 'appellate court'). In the memorandum of appeal, the second appellant DCC was shown as being represented by its 'former President'. On an application made by the appellants, the Appellate Court granted stay of eviction. During the pendency of the appeal, on 23.8.2000, the first appellant (A.N. Singh) died. His legal heirs did not come on record. However, one Ram Kalewar Prasad Singh, claiming to be the 'Working President' of DCC, filed an application to delete the first appellant and show DCC as the sole appellant and also to substitute the words 'Working President' in place of 'former President' as the person representing DCC. The said application for substitution was opposed by the landlord.

6. On hearing the said application for substitution, the learned Additional District Judge, by order dated 27.4.2002, dismissed the appeal. He found that even though A.N.

Singh and DCC were arrayed as appellant Nos. 1 and 2 respectively, the Vakalatnama accompanying the memorandum of appeal was signed only by A.N. Singh and no vakalatnama had been filed on behalf of DCC. He, therefore, rejected the request of Ram Kalewar Prasad Singh for substitution on the following reasoning :-

"Appellant No. 1 died on 23.8.2000 and his legal heir has not come for substitution and as such appeal has abated as against appellant no. 1; and no appeal was filed on behalf of District Congress Committee (I), Samastipur and present appeal on behalf of appellant no. 2 is nullity in the eye of law and hence liable to be dismissed. Accordingly the entire appeal is dismissed."

The said order of the appellate court was challenged by Ram Kalewar Prasad Singh and DCC, in Misc. Appeal No.300 of 2002. A learned Singh Judge of the Patna High Court allowed the said appeal by order dated 28.7.2003. The High Court reasoned that the appeal against the eviction decree had been filed both by A.N. Singh and DCC which was a separate juristic person (described accordingly in the plaint by the landlord); that while it was true that a former President could not represent DCC in the appeal and DCC had not granted a vakalatnama, neither the landlord (respondent in the said appeal) nor the Office had raised any such objection; and that as the juristic person (DCC) was already on record, the person entitled to represent such juristic person ought to have been permitted to come on record, and thus rectify the defect relating to improper representation. The High Court, therefore, permitted DCC represented by its 'Working President' to come on record and pursue the appeal before the appellate court. The High Court, however, kept open the question relating to the right of the working President to represent DCC, to be decided in the appeal.

7. The said order of the High Court is challenged contending that the High Court has failed to note that there was no 'appeal' by DCC before the District Court, in the eye of law, for two reasons. Firstly, though DCC was arrayed as the second appellant in the memorandum of appeal, it was shown as represented by its 'former President', and a former President could not represent DCC. Secondly, the Vakalatnama in favour of the pleader was executed only by A.N. Singh and not by DCC. It is submitted that the appeal was, therefore, in effect, only by A.N. Singh, and as his L.Rs. did not come on record on his death, the appeal abated. Reliance is placed on an old decision of the Patna High Court in Sheikh Palat vs. Sarwan Sahu [1920 (55) IC 271] wherein it was held that presentation of a memorandum of appeal by a Vakil without any authority in the shape of a Vakalatnama is not a valid presentation.

8. On the other hand, learned counsel for the respondents submitted that the order of the High Court did not suffer from any error. He pointed out that DCC had been impleaded as the second defendant in the eviction suit; that DCC was represented by its President A.N. Singh in the suit; and that by the time the appeal against the eviction decree was filed, A.N.Singh had ceased to be its President, but as he had represented DCC in the suit, the appeal was filed by A.N. Singh on behalf of himself and on behalf of DCC as its former President. It is submitted that failure to mention in the Vakalatnama that A.N. Singh was executing the Vakalatnama not only as the first appellant, but also on behalf of the second appellant (DCC), was due to oversight. It is submitted that DCC being represented in the appeal by a 'former President' was also a curable defect. It is contended that if either the landlord or the office had pointed out the said defect/omission, it would have been rectified immediately; and, therefore, the application filed by the working President for substitution was rightly allowed by the High Court.

9. Two questions, therefore, arise for our consideration : (i) whether the appeal by DCC against the eviction decree was defective or invalid and (ii) whether such defect could be permitted to be rectified ?

10. Order 41 Rule 1 CPC requires every appeal to be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in that behalf. Order 3 Rule 4 CPC deals with appointment of pleaders. Relevant portion thereof is extracted below :

"4. Appointment of pleader.(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all the proceedings in the suit are ended so far as regards the client.

[Explanation. For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit, --

(a) x x x

(b) x x x

(c) an appeal from any decree or order in the suit, ..."

11. In Bihar State Electricity Board Vs. Bhowra Kankanee Collieries Ltd. [1984 (Supp.) SCC 597], this Court considered a case where the Vakalatnama was not filed with the Appeal Memo. As the defect was not removed in spite of grant of an opportunity, the High Court dismissed the appeal as also the application for restoration. This Court, while allowing the appeal against the said dismissal, held thus :- "6. Undoubtedly, there is some negligence but when a substantive matter is dismissed on the ground of failure to comply with procedural directions, there is always some element of negligence involved in it because a vigilant litigant would not miss complying with procedural direction more so such a simple one as filing Vakalatnama. The question is whether the degree of negligence is so high as to bang the door of court to a suitor seeking justice. In other words, should an investigation of facts for rendering justice be peremptorily thwarted by some procedural lacuna ?

7. It is not for a moment suggested that a party can ignore peremptory orders of the Court for making the appeal ready for hearing the appeal within a specified time. But having said this, it must also be borne in mind that the procedure was devised for doing justice and not for thwarting the same. In such a situation, civil courts have leaned in favour of repairing the harassment, inconvenience or damage to the other side by some order of costs. But to take the view that failure to comply with an order for filing Vakalatnama would result in dismissal of the appeal involving a fairly good sum is to put such procedural requirement on a pedestal tall enough to hinder the course of justice. We find it difficult to be a party to this proposition. Hence we are inclined to interfere."

12. In Shastri Yagnapurushdasji & Ors. V. Muldas Bhundardas Vaishya & Anr. [AIR 1966 SC 1119], this Court considered a case where the Vakalatnama was in favour of 'X', but the memorandum of appeal was signed and filed by 'Y'. This Court while holding that the High Court was justified in permitting 'X' to sign the memorandum of appeal, in order to remove the irregularity, observed thus : "Technically, it may be conceded that the memorandum of appeal presented by Mr. Daundkar suffered from the infirmity that respondent No.1 had signed his Vakalatnama in favour of the Government Pleader and Mr. Daundkar could not have accepted it, though he was working in the Government Pleader's office as an Assistant Government Pleader. Even so, the said memo was accepted by the office of the Registrar of the Appellate Side of the High Court, because the Registry regarded the presentation of the appeal to be proper; the appeal was in due course admitted and if finally came up for hearing before the High Court. The failure of the Registry to invite the attention of the Assistant Government Pleader to the irregularity committed in the presentation of the said appeal cannot be said to be irrelevant in dealing with the validity of the contention raised by the appellants. If the Registry had returned the appeal to Mr. Daundkar as irregularly presented, the irregularity could have been immediately corrected and the Government Pleader would have signed both the memo of appeal and the Vakalatnama. It is an elementary rule of justice that no party should suffer for the mistake of the court or its office."

13. We may also usefully refer to the decision in Kodi Lal Vs. Ch. Ahmad Hasan ]AIR 1945 Oudh 200], where the legal position was stated thus : -

"The governing rule no doubt is that the counsel must be duly authorized by his client to enable him to sign the appeal or to present it on his behalf. ...... It is to be noticed that the procedure, which is laid down imposes a prohibition on the pleader to act without a valid power. It does not confer any benefit on the opponent except perhaps on the hypothesis that the actings of the counsel do not amount to acting in law. Where circumstances disclose however that the omission to file a power at the time of presentation of the appeal was accidental, it would be inequitable to visit the penalty for the omission on the litigant by insisting that his appeal must fail. Sub-rule (1) of R.4 of O.3 does not prohibit a Court from giving under S. 151, Civil P.C., retrospective validity to the act of a pleader who files a vakalatnama subsequently. ....... Ordinarily a power must be filed either antecedently or simultaneously with the acting but unless it is so enjoined or any principle of law is violated or injustice is likely to occur, a statutory rule of practice should not normally be allowed to be used as a weapon of attack. The following dictum of Bowen L.J., in (1884) 26 Ch. D. 700 may be here referred to with advantage :

"The object of Courts is to decide the rights of parties and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights ... Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy."

If therefore there was an inadvertent technical violation of the rule in consequence of a bona fide mistake, and the mistake is subsequently remedied the defect need not necessarily be fatal."

14. In so far as the decision in Sheikh Palat (supra) relied on by the appellant-landlord, we find that the said decision is not of much assistance to the appellant as the decision itself clarifies that "it may not be necessary to file a Vakalatnama with the petition of appeal, but it is certainly necessary that there should be at the time of presentation of the appeal, a Vakalatnama in existence bearing the signature of the appellant or his attorney."

15. It is, thus, now well-settled that any defect in signing the memorandum of appeal or any defect in the authority of the person signing the memorandum of appeal, or the omission to file the vakalatnama executed by the appellant, along with the appeal, will not invalidate the memorandum of appeal, if such omission or defect is not deliberate and the signing of the Appeal memorandum or the presentation thereof before the appellate court was with the knowledge and authority of the appellant. Such omission or defect being one relatable to procedure, it can subsequently be corrected. It is the duty of the Office to verify whether the memorandum of appeal was signed by the appellant or his authorized agent or pleader holding appropriate vakalatnama. If the Office does not point out such defect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely by reason of such defect, without giving an opportunity to the appellant to rectify it. The requirement that the appeal should be signed by the appellant or his pleader (duly authorized by a Vakalatnama executed by the appellant) is, no doubt, mandatory. But it does not mean that non-compliance should result in automatic rejection of the appeal without an opportunity to the appellant to rectify the defect. If and when the defect is noticed or pointed out, the court should, either on an application by the appellant or suo motu, permit the appellant to rectify the defect by either signing the memorandum of appeal or by furnishing the vakalatnama. It should also be kept in view that if the pleader signing the memorandum of appeal has appeared for the party in the trial court, then he need not present a fresh Vakalatnama along with the memorandum of appeal, as the Vakalatnama in his favour filed in the trial court will be sufficient authority to sign and present the memorandum of appeal having regard to Rule 4(2) of Order 3 CPC, read with Explanation [c] thereto. In such an event, a mere memo referring to the authority given to him in the trial court may be sufficient. However, filing a fresh Vakalatnama with the memo of appeal will always be convenient to facilitate the processing of the appeal by the office.

16. An analogous provision is to be found in Order 6 Rule 14 CPC which requires that every pleading shall be signed by the party and his pleader, if any. Here again, it has always been recognized that if a plaint is not signed by the plaintiff or his duly authorized agent due to any bona fide error, the defect can be permitted to be rectified either by the trial court at any time before judgment, or even by the appellate court by permitting appropriate amendment, when such defect comes to its notice during hearing.

17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are :- i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.

ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;

iii) where the non-compliance or violation is proved to be deliberate or mischievous;

iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.

v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant;

18. We will now examine the facts of this case with reference to the aforesaid principles. A.N. Singh and DCC (by its President A.N. Singh) were the defendants in the eviction suit and they were represented in the trial court by their counsel Shri Bindeshwar Prasad Singh and his colleagues. The cause-title of the memorandum of appeal against the eviction suit shows that there were two appellants - A.N. Singh and DCC. It is evident from the subsequent application for substitution that DCC was aware of the filing of the appeal. The memorandum of appeal was signed by Shri Umesh Chandra Kumar, Advocate, colleague of Shri Bindeshwar Prasad Singh. It was accompanied by a vakalatnama executed by A.N. Singh in favour of Shri Bindeshwar Prasad Singh and his colleagues including Shri Umesh Chandra Kumar. The office report on examination of the memorandum of appeal did not refer to any defect relating to absence of any vakalatnama by DCC. It is apparent that the appellants' counsel and the District Court office proceeded on the basis that A.N. Singh was representing himself and the DCC as its former President. Only when A.N. Singh died and the working President of DCC filed an application for deletion of appellant No.1 (A.N. Singh) and for amendment of the description of appellant No.2 by substitution of the words 'Working President' for 'Former President" as the person representing DCC, an objection was raised alleging improper presentation. In the circumstances, the appellate court ought to have accepted the application for amendment and substitution filed on behalf of DCC.

19. Another aspect requires to be noticed. When A.N. Singh ceased to be the President, it is true that in the normal course, he could not have represented DCC as its former President. But it was possible for A.N. Singh to represent DCC as its former President, if there was a resolution by DCC expressly authorizing him to represent it in the appeal. It is also possible that in the absence of a new President, A.N. Singh continued to act on the assumption that he was entitled to represent DCC. As no objection was raised during the lifetime of A.N. Singh, his explanation is not available as to why he chose to represent DCC in the appeal, as its 'former President'. Neither the office of the appellate court, nor the landlord-respondent having raised this issue and the Vakalatnama signed by A.N. Singh having been received and impliedly accepted by the appellate court as validly executed by the appellants, the landlord's objection to the application for substitution ought to have been rejected by the appellate court. At all events, if the representation was found to be defective or non-existent, the appellate court ought to have granted an opportunity to the second appellant DCC, to rectify the defect.

20. There is yet another reason to hold that the appeal by DCC against the eviction decree was validly filed. DCC was represented by Shri Bindeshwar Prasad Singh and his colleagues in the trial court. The same counsel filed the appeal. The Vakalatnama granted by DCC in favour of the said counsel in the trial court was sufficient authorization to the said counsel to file the appeal having regard to Order 3 Rule 4(2) CPC read with Explanation [c], even without a separate vakalatnama for the appeal.

21. We may at this juncture digress and express our concern in regard to the manner in which defective Vakalatnamas are routinely filed in courts. Vakalatnama, a species of Power of Attorney, is an important document, which enables and authorizes the pleader appearing for a litigant to do several acts as an Agent, which are binding on the litigant who is the principal. It is a document which creates the special relationship between the lawyer and the client. It regulates and governs the extent of delegation of authority to the pleader and the terms and conditions governing such delegation. It should, therefore, be properly filled/attested/accepted with care and caution. Obtaining the signature of the litigant on blank Vakalatnamas and filling them subsequently should be avoided. We may take judicial notice of the following defects routinely found in Vakalatnamas filed in courts :-

(a) Failure to mention the name/s of the person/s executing the Vakalatnama, and leaving the relevant column blank;

(b) Failure to disclose the name, designation or authority of the person executing the Vakalatnama on behalf of the grantor (where the Vakalatnama is signed on behalf of a company, society or body) by either affixing a seal or by mentioning the name and designation below the signature of the executant (and failure to annex a copy of such authority with the Vakalatnama).

(c) Failure on the part of the pleader in whose favour the Vakalatnama is executed, to sign it in token of its acceptance.

(d) Failure to identify the person executing the Vakalatnama or failure to certify that the pleader has satisfied himself about the due execution of the Vakalatnama.

(e) Failure to mention the address of the pleader for purpose of service (in particular in cases of outstation counsel).

(f) Where the Vakalatnama is executed by someone for self and on behalf of someone else, failure to mention the fact that it is being so executed. For example, when a father and the minor children are parties, invariably there is a single signature of the father alone in the Vakalatnama without any endorsement/statement that the signature is for 'self and as guardian of his minor children'. Similarly, where a firm and its partner, or a company and its Director, or a Trust and its trustee, or an organisation and its office-bearer, execute a Vakalatnama, invariably there will be only one signature without even an endorsement that the signature is both in his/her personal capacity and as the person authorized to sign on behalf of the corporate body/firm/ society/organisation.

(g) Where the Vakalatnama is executed by a power-of- attorney holder of a party, failure to disclose that it is being executed by an Attorney-holder and failure to annex a copy of the power of attorney;

(h) Where several persons sign a single vakalatnama, failure to affix the signatures seriatim, without mentioning their serial numbers or names in brackets. (Many a time it is not possible to know who have signed the Vakalatnama where the signatures are illegible scrawls);

(i) Pleaders engaged by a client, in turn, executing vakalatnamas in favour of other pleaders for appearing in the same matter or for filing an appeal or revision. (It is not uncommon in some areas for mofussil lawyers to obtain signature of a litigant on a vakalatnama and come to the seat of the High Court, and engage a pleader for appearance in a higher court and execute a Vakalatnama in favour of such pleader).

We have referred to the above routine defects, as Registries/ Offices do not verify the Vakalatnamas with the care and caution they deserve. Such failure many a time leads to avoidable complications at later stages, as in the present case. The need to issue appropriate instructions to the Registries/Offices to properly check and verify the Vakalatnamas filed requires emphasis. Be that as it may.

22. Coming back, we find that the High Court was justified in setting aside the dismissal and restoring the first appeal to the file of the Additional District Judge with a direction to decide the matter on merits. We, therefore, dismiss this appeal.

Nothing stated above or by the High Court, shall be construed as an expression of any view or opinion on the merits.

Whether an advocate-or a pleader to whom a Vakalatnama is given, has power in the absence of express authorization to compromise the suit on behalf of the party for whom he appears.

JUDGMENTFrederick William Gentle, C.J.1. In this civil miscellaneous appeal the sole point for decision (whether an advocate-or a pleader to whom a vakalatnama is given, has power in the absence of express authorisation to compromise the suit on behalf of the party for whom he appears.

2. The appeal came before Yahya Ali, J. who directed it to be placed before the Chief Justice for orders, in light of the conflict in the decided authorities. Hence it comes before this Bench for disposal.

3. In the Court of the District Munsiff of Karkal the plaintiffs claimed possession of some immoveable property as the reversioners of one Keshava Bhatta deceased, the last male holder. During her life-time, his widow purported to settle the property upon one Puttappayya who, having died, was survived by the five defendants, some of whom claimed the property and were in possession of it. The suit was laid against all survivors. The third and fifth defendants remained ex parte; the first, second and fourth defendants contested the suit on the ground that the property was demised by Keshava Bhatta by will to his widow who consequently had full disposing power over it. The first defendant asserted no interest, alleging that the property had been allocated to the second defendant in a partition. The second and fourth defendants further alleged that moneys had been spent by way of repairs and improvements and, in any event, the expenditure should be reimbursed. The first defendant appeared by a pleader and the second and fourth defendants were represented by an advocate to whom respectively they gave vakalatnamas signed by each of them. The suit was compromised and a decree was passed upon the terms endorsed upon the plaint, including that the three contesting defendants agreed there should be a decree for possession. The endorsement was signed by the first and second defendants, by the pleader for the former and by the advocate for the second and fourth defendants ; the fourth defendant was not in Court and did not sign the terms. She. disputes the validity of the com promise, so far as she is concerned, alleging she did not agree to it and the advocate had no authority to effect it on her behalf. No point arises by reason of the second and fourth defendants being represented by the same advocate and the appeal has been treated and argued as if she had given a separate vakalatnama to the advocate and he had appeared for her alone

4. An appeal by the fourth defendant to the learned Subordinate Judge of South Kanara challenging the validity of the settlement, so far as she is concerned, was allowed ; the decree passed against her was set aside and the trial Court was directed; to proceed with the trial of the suit with reference to that defendant's defence and decide the matter on the merits. This is an appeal by the plaintiffs against the decision of the learned Subordinate Judge.

The vakalatnama provides that,

I (fourth defendant) do hereby appoint and retain (the advocate) to appear for me in the above suit and to conduct and defend the same.

5. Then follows, with regard to the suit, express directions for the advocate to conduct and defend proceedings in any application fpr execution, appear in all miscellaneous proceedings in the suit until all decrees or orders are satisfied or adjusted ; obtain the return of all documents ; draw any moneys payable to the client ; accept service of notice of all appeals or petitions filed in any Court of Appeal, reference or revision. In all there are six express directions, powers or authorities given in the vakalatnama. There is no reference made to compromise of the suit, but, on the contrary, the advocate is expressly directed to conduct and to defend it; the other powers 4or directions are to do the several things, therein mentioned,, after a decree had been passed.

6. Before referring to the decided cases I desire to make two observations. It is difficult to see how an express and explicit direction or power to conduct and defend a suit, which must mean to contest it, includes a direction or power to compromise, it. The vakalatnama confers, in detail, six separate and distinct powers and the absence of a power or direction to compromise is not without significance.

7. On behalf of the appellants it was argued that the advocate's authority to appear for the client, to conduct and to defend the suit impliedly included authority to compromise it. Reliance for this contention was placed upon Sourendranath Mitra v. Tarubala Dasi(1929) 58 M.L.J. 551 : L.R. 57 LA. 133 : I.L.R. 57 Cal. 1311 (P.C.), where their Lordships of the Judicial Committee held that an advocate, admitted to practice by the appropriate Court in India, when briefed in a suit, has implied authority of his client to settle the suit by a compromise ; it was however observed at page 1319 of the report that, Where the legal representative in Court of a client derives his authority from an express written authority such as a vakalatnama, different considerations may well arise and, in such cases, their Lordships express no opinion as to the existence of any implied authority of the kind under discussion.

8. There the advocate's authority was derived from his being retained and being briefed by a solicitor to appear on behalf of the client; that is to say, his authority was a general one endorsing him with power to do all things connected with the proceedings as and when occasion should arise ; he was not given any vakalatnama by the client containing the terms of his authority, in which circumstance the Board seemed to have contemplated a different position might exist.

9. In Jagpati Mudaliar v. Ekambara Mudaliar (1897) 8 M.L.J. 40 : I.L.R. 21 Mad. 274, a vakalatnama empowered a pleader to conduct a suit and the client agreed to accept, all acts done by the pleader in Court concerning the suit; it was held by a Division Bench there was no authority to compromise. A decision by another Division Bench to a similar effect is found in Thenal Ammal v. Sokkammal (1947) 41 Mad. 233, even when the vakalatnama authorised the advocate to pre sent, if necessary, a petition for razinama for withdrawal and to sign razinama with drawal. But in Jiwibai v. RamkuwarI.L.R. 1946 Nag. 824 (F.B.)., a Full Bench expressed the opinion that barristers, advocates and pleaders in India have inherent powers to compro mise claims without the authority or consent of their client, unless their powers have been expressly countermanded in that behalf, irrespective of whether a written authority to act or plead is or is not given. Again in Viswanatha Chettiar v. Appa Naicken (1943) 2 M.L.J. 168 a vakalatnama contained a provision by which the client agreed to accept all proceedings conducted by an advocate as if done by the client personally; Horwill, J., observed that it was not unreasonable to bear in mind that advocates .ordinarily have authority to compromise and also to assume that it was intended to embody that authority which, in the absence of a vakalatnama, would be implied, the learned Judge was, therefore, not prepared to say that a compromise which had been made was illegal.

10. Any doubt which might exist, regarding the meaning and effect of a vakalatnama containing provisions similar to those in the present case, is removed by a pronounce ment of the Judicial Committee in Saratkumari v. Amulyadhan A.I.R. 1923 P.C. 13 (P.C). There, a pardanashin lady executed a power of attorney appointing several persons, including Babu Probodh Kumar Das her vakils to argue her case, to inspect the records, execute documents and deposit and withdraw moneys and do all such other acts, >the same to be accepted and ratified as acts done by her. The abovenamed vakil purported to enter into a compromise on her behalf; he never saw her, never spoke to her in reference to the compromise nor had any communication with her touching it. It was observed by the Board at page 15 of the report that it has been well established and is not, as their Lordships understand, questioned in this case, .that a vakil appointed under such a power of attorney as this is not endowed with power or authority to compromise the suit he is thus retained to argue.

11. Whether it is called a power of attorney or a vakalatnama the authority of the advocate in the present instance, is derived from the written document. In principle", there is no difference whether the client is a pardanashin lady or a lady who does not observe gosha or anybody else. The fourth defendant empowered the advocate to appear for her and to conduct and defend the suit; site did not empower him to settle it on her behalf. He had no express authority to effect a compromise, but solely to contest the suit. In those circumstances no implied authority arises or can be deemed to have been conferred upon him to make a compromise which was binding upon his client.

12. In light of the pronouncement by the Board in Sarathkumari v. Amulyadhan A.I.R. 1923 P.C. 13, and, with respect, differing from the decisions to the contrary, above cited, in my opinion the learned Subordinate Judge was correct and this Civil miscellaneous appeal must be dismissed with costs. The suit will be remanded to the trial Court, as directed by the lower appellate Court.

Supreme Court said the underlying public policy behind Order 37 is expeditious disposal of suits of commercial nature. It provides for such disposal as expeditiously as possible by prescribing time frame therefore. Where, however, applicability of Order 37 of the Code itself is in question which appears to be the principal reason behind the impugned judgment, in our opinion, grant of leave may be permissible. The court before passing a decree was entitled to take into consideration the consequences therefore.

2. Appellant herein questions a judgment and order dated 13.02.2007 passed by a learned Single Judge of the Bombay High Court granting unconditional leave to defend in a summary suit wherein summons for judgment had been taken out.

3. Appellant filed the aforementioned suit for recovery of a sum of Rs. 25,00,000/- with interest, which amount he is said to have advanced to the respondents by a cheque. Respondents allegedly executed a promissory note for the said amount. An amount of Rs. 5,27,293/- was said to have been repaid by way of interest. A certificate of deduction of tax at source under Section 203 of the Income Tax Act, 1961 for the amount of tax deducted is said to have been issued to the appellant. A post dated cheque for Rs. 25,00,000/- was also given. Respondents also allegedly issued the following cheques towards payment of interest accrued, the details whereof are as under:

Cheque No. Date Amount

948921 2-1-2003 67,903/-

948928 31-1-2003 12,500/-

948929 3-2-2003 12,500

4. All the four cheques having not been honoured, complaint petitions were filed. Allegedly all original documents, viz., promissory note and four cheques, which were filed in the criminal court were misplaced.

The writ of summons in the summary suit was served upon the respondents. They appeared on 14.08.2006. An application for a judgment in the said suit was applied for by way of Summons for Judgment on 07.12.2006, which by reason of the impugned judgment has been disposed of.

5. Mr. Shekhar Naphede, learned senior counsel appearing on behalf of the appellant, would submit that a suit having been filed on the basis of bill of exchange within the meaning of Order 37, Rule 1 of the Code of Civil Procedure (for short the Code) read with Section 6 of the Negotiable Instruments Act, 1881 (for short the Act), the High Court committed a manifest error in passing the impugned order.

In any event, the learned counsel would contend that the court ought to have, keeping in view the facts and circumstances of the case, imposed conditions.

6. Mr. Jatin Zaveri, learned counsel appearing on behalf of the respondents, on the other hand, would submit that the promissory note, having not been properly stamped, was not admissible in evidence and as such even a summary suit is not maintainable.

8. A summary suit, as provided for in Order 37, Rule 1 of the Code is maintainable if it is filed on bills of exchange, hundis and promissory notes. A cheque is a bill of exchange within the meaning of Section 6 of the Act. Order 37, Rule 2 of the Code provides as to what should a Plaint contain. Rule 3 thereof provides for the procedure to be adopted in such a suit. Sub- Rule (1) of Rule 3 provides for entrance of appearance by the defendant within ten days from the date of service of summons. Sub-rule (4) of Rule 3 provides for service of a summons for judgment in Form No. 4A upon the defendant. Defendant within ten days from the service of such summons by affidavit or otherwise may disclose facts which would be deemed sufficient to entitle him to defend, apply for leave to defend such suit. Leave to defend, however, may be granted unconditionally upon such terms as may appear to the court to be just. Sub-Rule (6) of Rule 3 of Order 37 of the Code provides for hearing of such summons for judgment stating:

6. Recovery of cost of noting non-acceptance of dishonoured bill or note .The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non- acceptance or non-payment, or otherwise, by

reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note.

9. A decree in a summary suit is to be granted provided it fulfills all the criteria laid down therein. What is mandatory is the entering of appearance by the defendant in the suit. Appellant took out summons for judgment under Order 37, Rule 3 on 5.01.2007. It was served on the respondents on 8.01.2007. It was listed for hearing on 13.02.2007. Time was sought for by the respondents to file their affidavit in reply. However, an unconditional leave to defend was granted by the learned Judge having regard to the admitted position that the appellant was not in a position to produce the original documents.

10. For the purpose of obtaining a summary judgment in terms of Order 37 of the Code, ordinarily the original documents must be produced. Original documents are not available. Appellant, therefore, is obligated to prove the loss of documents. Only because a suit has been entertained as a summary suit, the same by itself may not be a ground for passing of a judgment on mere asking. We have noticed the fact situation obtaining herein. The High Court was of the opinion that it is a case where unconditional leave should be granted. The question as to whether the defence of the respondents is moonshine or not was not a matter which required consideration of the High Court at that stage. A decree could not have been granted on the basis of even photostat copies of the documents. [See Food Corporation of India v. Dena Bank, Indore and another AIR 2004 MP 158] Presumption in regard to a negotiable instrument or a bill of exchange in terms of Section 118 of the Act is also an evidence. It is true that a presumption can be raised that a bill of exchange was correctly stamped as provided for under Clause (f) of Sub-section (2) of Section 128 of the Code but a decree is to be passed by a court of law upon application of mind.

Order 37 of the Code has been prescribed in terms of the provisions contained in Clause (f) of Sub-section (2) of Section 128 of the Code so as to expedite trial of suits specified therein. We have no doubt in our mind that the underlying public policy behind Order 37 is expeditious disposal of suits of commercial nature. It provides for such disposal as expeditiously as possible by prescribing time frame therefor. Where, however, applicability of Order 37 of the Code itself is in question which appears to be the principal reason behind the impugned judgment, in our opinion, grant of leave may be permissible. The court before passing a decree was entitled to take into consideration the consequences therefor.

11. Reliance has been placed by Mr. Naphede on a decision of this Court in M/s. Mechelec Engineers & Manufacturers v. M/s. Basic Equipment Corporation [(1976) 4 SCC 687] wherein this Court quoted with approval a decision of the Calcutta High Court in Sm. Kiranmoyee Dassi v. Dr. J. Chatterjee [49 CWN 246 : AIR 1949 Cal 479] in the following terms:

(a) If the defendant satisfies the court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.

(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.

(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a

defence, yet, shews such a state of facts as leads to the inference that at the trial of the action be may be able to establish a defence to the plaintiffs claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the court may in its discretion impose conditions as to the time or mode of trial but not as to payment into court or furnishing security. (d) If the defendant has no defence or the defence set-up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.

(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the court may protect the

plaintiff by only allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the

defendant by enabling him to try to prove a

defence.

12. Admissibility of secondary evidence would be subject matter to evidence. Only if a court is to go into the evidence, presumptive evidence could also be taken into consideration. Although the burden may be on the defendant, he may discharge the same only when it is raised. The Code does not put any embargo on the courts exercising a suo motu power of granting leave in a case of this nature. If a court does so even when an application was not filed, keeping in view the admitted position of the case, we do not see any illegality therein. As a decree in summary suit may not be automatic and the court can always refuse to exercise its discretionary as the original documents were not produced and, thus, the plaintiff is called upon to prove that the documents are lost in the criminal proceedings.

13. In view of the fact that no application for leave was filed, it is not possible for us to consider submission of Mr. Naphede in regard to the presumptions arising under Clause (f) of Sub-section (2) of Section 128 of the Code or purported acknowledgement contained in the balance sheet of the respondents.

We, however, are of the opinion that the question as to whether the respondents should be put to any terms or not should be determined afresh by the High Court as the High Court did not address itself on the aforementioned question. We, however, express no opinion thereupon.

14. For the reasons aforementioned, we are of the opinion that the impugned judgment warrants no interference at this stage. The appeal is dismissed accordingly, subject, however, to the aforementioned observations. No costs.

2. This appeal, which is directed against the order passed by the Karnataka High Court on 26th June, 2008, in a proceeding under Order 37 of the Code of Civil Procedure, raises an interesting question of law regarding the interpretation of Rule 3, Sub-rule (5) thereof.

3. Rule 3, as it now reads, was introduced in Order 37 of the Code by way of amendment with effect from 1st February, 1977. Prior to such amendment, Rule 3 of Order 37 was as follows :- 2

&quot;Rule 3. (1) The Court shall, upon an application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.

(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.&quot;

By virtue of the Code of Civil Procedure (Amendment) Act, 1976, Rule (3) of Order 37 was substituted by Rule 3 as it now exists and introduced various changes of which one of the more significant changes was the introduction of Sub-rules (4) and (5) which read as follows:-

&quot;3. (4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No.4A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. (5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judges to be just:

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Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.&quot; It may also be profitable to refer to Sub-rule (6) which provides as follows:-

&quot;(6) At the hearing of such summons for judgment, -

(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the

plaintiff shall be entitled to judgment forthwith; or

(b) if the defendant is permitted to defend as to the whole or any part of the

claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the

plaintiff shall be entitled to judgment forthwith.&quot;

4. In the instant case, the respondent filed a suit under Order 37 of the Code of Civil Procedure, 4

hereinafter referred to as &quot;the Code&quot;, for recovery of a sum of Euro 757,885.42 equivalent to Rs.3,86,52,156.42 in Indian currency. On being served with Summons for Judgment in terms of Rule 3, Sub-rule (4), of Order 37 of the Code, the petitioner filed an affidavit providing various details which made out triable issues in the suit. On the basis of the said affidavit the learned XXXI Additional City Civil Judge, Bangalore, granted conditional leave to the petitioner to defend the suit.

5. Being aggrieved by the said order, the respondent company moved in revision before the High Court which after considering the submissions made and the defence taken by the defendant/appellant came to the conclusion that a triable issue had been raised in the suit which would have to be decided in a full-fledged trial. However, the High Court also came to a finding that though the defendant/appellant had raised a triable issue, the defence taken did not exonerate them from payment of the entire amount claimed by the respondent herein.

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6. The High Court held that despite the admission of the defendant regarding the amount claimed by the respondent in the suit, since the same had not been paid to the plaintiff/respondent, it would be in the fitness of things to direct the defendant/appellant to deposit a substantial portion of the amount which had been admitted to be due and payable even if the defence set up by the defendant/appellant was not sham, moonshine or illusory. The High Court accordingly modified the unconditional leave granted to the defendant/appellant to defend the suit and restricted the same to the claim of the plaintiff-company to the amount excluding the total demand of Euro 3,20,967.51 covered under the documents Annexures G-1 and G-2. The High Court directed that leave to defend the suit in respect of the claim of the plaintiff-company for the said amount of Euro 3,20,967.51 would be subject to the condition that the defendant/appellant firm would deposit in the trial court 55% of the said amount within eight weeks from the date of the orders of the High Court.

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7. The defendant/appellant has come up to this Court challenging the said order of the High Court.

8. On behalf of the defendant/appellant it was urged that the consistent view taken by this Court in relation to summary trials under Order 37 of the Code is that when a Court is satisfied that a triable issue has been raised in defence of the claim made on behalf of the plaintiff, unconditional leave has to be granted to the defendant to contest the suit and no direction could be given while granting such leave to the defendant to deposit any amount by way of security. Mr. T.V. Ratnam, learned advocate, who appeared for the defendant/appellant submitted that this view had been taken by the Calcutta High Court as far back as in 1949 in the case of Kiranmoyee Dassi vs. Dr. J. Chatterjee, [AIR 1949 Calcutta, page 479] and was subsequently reiterated and followed by this Court in the case of Santosh Kumar Vs. Bhai Mool Singh, [1958 SCR 1211], in which this Court set aside the order of the High Court upon holding that the imposition of a condition while granting leave to defend a suit in which a triable issue has been raised was illegal. If the Court was satisfied that there 7

was a genuine triable issue, leave had to be given and given unconditionally to defend the suit.

9. Mr. Ratnam submitted that same view was taken by this Court in Milkhiram (India) Private Ltd. vs. Chamanlal Bros., [AIR 1965 SC 1698] and in M/s. Mechelec Engineers and Manufacturers Vs. M/s. Basic Equipment Corporation, [1976 (4) SCC 687] wherein it was further clarified that it is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed, that the exercise of discretion by the trial court to grant unconditional leave to defend may be questioned.

10. In addition to his aforesaid submissions Mr. Ratnam urged that in the absence of any error of jurisdiction or the illegal exercise of jurisdiction or the exercise of jurisdiction with material irregularity, the High Court had no jurisdiction to entertain the revisional application filed by the respondent. Mr. Ratnam submitted that as a legal proposition, it was well established that in revisional jurisdiction even a wrong order cannot be corrected or 8

interfered with and that the scope of interference is limited to jurisdictional error only as was explained in the case of The Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad vs. Ajit Prasad Tarway. [AIR 1973 SC 76]. Mr. Ratnam submitted that on both counts the order of the High Court impugned in the appeal was liable to be set aside.

11. Replying to the submissions made on behalf of the appellant, Mr. Niraj Sharma, counsel for the respondent submitted that the legal parameters in which the earlier decisions cited on behalf of the appellant had been rendered stood significantly altered after the amendment of the Code in 1976. Learned counsel submitted that with the substitution of Rule 3 of Order 37, the earlier decisions, right up to the decision in the case of M/s. Mechelec Engineers and Manufacturers (supra) were to a large extent rendered ineffective in view of the addition of Sub-rules (4), (5) and (6) to Rule 3.

12. It was urged that Sub-rule (5) of Rule 3 of Order 37 is important to this case in the sense that it recognizes a dichotomy between a disputed claim 9

and an admitted claim in a suit filed under Order 37 of the Code. As far as the disputed claim is concerned, once the Court comes to a conclusion that there is a triable issue, unconditional leave has to be given to the defendant to defend the suit. However, in view of the second proviso to Sub-rule (5) of Rule 3, any amount of the claim, if admitted by the defendant to be due from him, has to be deposited in Court before the leave to defend a suit can be granted.

13. Mr. Sharma submitted that the admission by the appellant that there were certain dues which would be paid by the end of December, 2002, the High Court was justified in directing the appellant to deposit 55% of the admitted amount as a condition precedent for grant of leave to defend the suit in accordance with the provisions of the second proviso to Sub-rule (5) of Rule 3 of Order 37 as it now stands after the amendment effected with effect from 1st February, 1977. Mr. Sharma urged that there was, therefore, no ground or reason for this Court to interfere with the discretion exercised by the High Court in the impugned order.

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14. Having considered the submissions made on behalf of the respective parties and the decisions cited, there appears to be force in Mr. Sharma's submissions regarding the object intended to be achieved by the introduction of Sub-rules (4), (5) and (6) in Rule 3 of Order 37 of the Code. Whereas in the unamended provisions of Rule 3, there was no compulsion for making any deposit as a condition precedent to grant of leave to defend a suit by virtue of the second proviso to Sub- rule (5), the said provision was altered to the extent that the deposit of any admitted amount is now a condition precedent for grant of leave to defend a suit filed under Order 37 of the Code. A distinction has been made in respect of any part of the claim, which is admitted. The second proviso to Sub-rule (5) of Rule 3 makes it very clear that leave to defend a suit shall not be granted unless the amount as admitted to be due by the defendant is deposited in Court.

15. The High Court has come to a finding that a certain portion of the plaint has been duly admitted by the appellant herein and accordingly directed 55% thereof to be deposited as a pre- condition for grant of leave to defend the suit. 11

16. As has been pointed out by Mr. Sharma, it is now well established as a principle of law that even if a wrong order is passed by a Court having jurisdiction to pass an order in such cases, the revisional Court will not interfere with such an order unless a jurisdictional error is pointed out and established by the person who questions such order.

17. In the instant case, the High Court did not lack jurisdiction to pass an order with regard to the subject matter of dispute, though the order itself may be incorrect. There is, therefore, little scope for this Court to interfere with the directions given to the appellant herein to deposit in Court 55% of the admitted dues as a pre-condition to grant of leave to defend a suit. The judgment of the High Court impugned in this appeal does not warrant any interference since the trial Court had exercised its jurisdiction under the second proviso to Sub-rule (5) of Rule 3 of Order 37 of the Code. The earlier concept of granting unconditional leave when a triable issue is raised on behalf of the defendant, has been supplemented by the addition of a mandate, which has been imposed on the defendant, to 12

deposit any amount as admitted before leave to defend the suit can be granted. The question as to whether leave to defend a suit can be granted or not is within the discretionary powers of the High Court and it does not appear to us that such discretion has been exercised erroneously or with any irregularity which warrants interference by this Court.

18. The appeal is, therefore, dismissed.

19. There will be no order as to costs. ................J. (ALTAMAS KABIR)

A landlord can make an application for recovery of possession under . Clause (e) of the proviso to s. 14(1) of the Delhi Rent Control Act, 1958, on the ground that the premises let for residential purposes are required by him bona fide for occupation as a residence for himself or for any member of his family dependent upon him, provided he has no other reasonably suitable residential accommodation. Sub- s. (S) of s. 25B lays down that the Controller shall give to the tenant leave to contest the application, if the affidavit filed by the tenant "discloses such facts as would disentitle the landlord From obtaining on order for recovery possession" of the premises on the ground specified in Cl. (e) of the proviso to s. 14(1).

The respondent, a Hindu Undivided Family (HUF), filed a petition under Cl. (e) of proviso to s. 14(1) through the constituted attorney of its karta for an order for recovery of possession of the premises in question alleging that the premises had initially been given to the appellant on leave and licence, that the landlord (the karta of the HUF) who had gone out of the country had since settled down in Delhi, that the landlord had called upon the appellant in May, 1974 to vacate the premises as he had no other suitable accommodation and that

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the landlord bonafide required the same for his personal occupation. The appellant sought leave to contest the petition and filed an affidavit denying the allegation that it had entered the premises initially as a licensee and contending that according to cl. 6 of the lease agreement the premises were let for residential as well as commercial purpose, that the landlord had been residing in a house as spacious as the demised premises and equally spacious accommodation in an identical unit located at the back side of the demised premises was available to, him which had been let successively to three tenants during the period 1970 to 1976, each time raising the rent, and further that the landlord owned spacious accommodation at another place in Delhi. An affidavit in reply was filed on behalf of the landlord stating that the landlord had no interest in the building in which he was residing, that the identical unit located on the back side of the demised premises had been let to a tenant upto 1981 and that the accommodation located at another place in Delhi and referred to by the appellant was only a garage block.

The Controller decided all questions of fact taking the affidavits as unquestioned evidence and refused to grant leave to the appellant to contest the petition and passed an order of eviction in favour of the landlord. The revision petition filed by the appellant against the order was rejected by the High Court.

The question before the court was: What is the jurisdiction of the Controller under Sub-s. (S) of s.25B while dealing with an affidavit of the tenant seeking leave to contest an application for eviction filed by a landlord under cl. (e) of he proviso to s. 14(1) ?

Allowing the appeal.

^

HELD: (By the Full Court)

Leave to contest the petition for eviction under cl. (e) of proviso to s.l4(1) must be granted to the appellant under sub s (S) of sub-s. 25B of the Delhi Rent Control Act, 1958.

(per Desai and Baharul Islam JJ )

1. (a) While examining the question whether leave to defend ought or ought not to be granted, the limited jurisdiction which the Controller enjoys is prescribed within well defined limits. The language of sub-s. (5) of s. 25B casts a statutory v duty on the Controller to give to the tenant leave to contest the application, the only pre- condition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground mentioned in B. 14(1)(e). The legislature has used the expression "the Controller shall give leave to the tenant to contest the application." When the language of a statute is plain the principle that legislature speaks its mind in the plainest language has to be given full effect. The legislature has used the plainest language namely "facts disclosed in the affidavit of the tenant" and avoided the phraseology of the

(b) Undoubtedly, the rules of natural justice, apart from the adversary system we follow must permit the landlord to contest the affidavit filed by the tenant and he can do so by Sling an affidavit in reply. If the averments made in the affidavit of the tenant are controverted by the landlord, that fact may be borne in mind but if the facts disclosed in the affidavit of the tenant are contested by way of proof or disproof or producing evidence in the form of other affidavits or documents that would not be permissible. The Controller has to confine himself to the affidavit filed by the tenant under sub-s. (4) of s. 25B and the reply, if any and on perusing these, he has to pose to himself the only question: Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in s. 14(1)(e) ? on browsing through the affidavit of the tenant, if there emerges averment of facts which, on a trial, if believed would non-suit the landlord, leave ought to be granted. The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against other set of affidavits as it is clear from the language of sub-s. (S) of s. 25B that he has to confine himself to the affidavit filed by the tenant disclosing such facts as would primafacie and not on contest disentitle the landlord from obtaining an order for recovery of possession. It is wholly impermissible for the Controller to proceed to examine the rival contentions on the basis of affidavits untested by cross-examination and unproved documents. The regular trial required to be held by a Court of Small Causes as contemplated by sub-s. (6) read with sub- s. (7) of s. 25B is not to be substituted by affidavits and counter-affidavits. The scheme of s. 25B does not introduce a trial for arriving at the truth at the stage of proceeding contemplated by sub-s. (4) of s. 25B. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown. [524 B; 523 H; 524 A; SIS G-H; 514 A; 516 A-C; 517 E- G; 518 B; 516-E]

(c) Section 14(1) starts with a non obstante clause which would necessarily imply that the Controller is precluded from passing an order for recovery of possession in favour of the landlord unless the case is covered by any of the clauses of the proviso. Upon a true construction of cl. (e) of the proviso to s. 14(1) it would appear that the burden is on the landlord to satisfy the Controller that the premises are let for residential purpose, that possession is required by him bonafide for occupation as residence for himself or for any member of his family and that he has no other reasonably suitable residential accommodation. This burden, the landlord is required to discharge before the Controller gets jurisdiction to make an order for eviction. On a combined reading of s. 14(1)(e) and sub-ss. (1) and (4) of s. 25B, the legal position that emerges is that on a proper application being made in the prescribed manner which is required to be

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supported by an affidavit, unless the tenant obtains leave to defend as contemplated by sub-ss. (4) and (S) of s. 25B, the tenant is deemed to have admitted all the averments made in the petition filed by the landlord and the Controller would act on the admission of the tenant presuming every averment in the petition of the landlord as unchallengeable and truthful. This consequence itself is sufficient to liberally approach the prayer for leave to contest the petition.

(e) A code of procedure is something designed to facilitate justice and further its ends. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard. Too technical construction that leaves no room for reasonable elasticity of interpretation should be guarded against lest the very means designed for the furtherance of justice be used to frustrate it. The procedure prescribed in Chap. IIIA is harsh and weighted against the tenant. The Controller is the final arbiter of facts. Once leave is refused no appeal is provided against the order refusing leave. No one should be in doubt about the narrow constricted jurisdiction of the High Court while interfering with findings of facts in exercise of revisional jurisdiction. Wisdom, sagacity and the consequence of refusal to grant leave coupled with limited scope of inquiry being confined to facts disclosed in the affidavit of the tenant should guide the approach of the Controller.

In the instant case, the Controller had overlooked disclosure of important facts which put the bona fides of the landlord in issue and necessitated grant of leave to the appellant: The leave and licence agreement had been renewed in 1972 and 1973 though the landlord had been in Delhi since 1972; the landlord had admitted that the identical unit at the back of the demised premises which had fallen vacant in 1973 had been let out to another tenant; no action had been taken till 1979 on the notice seeking eviction served in 1974; every time a fresh letting had been indulged into, it had been done after raising the rent; and the landlord who had sought possession for himself and was admittedly in Delhi had not stated a single word on oath about his requirements and as to in what right he was occupying the premises in which he was staying. [529 B-H; 530 A-E] The High Court had adopted an incorrect approach as to how the matter had to be examined at the stage of granting or refusing to grant leave under sub-

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s. (S) of 8. 25B. It had failed to ascertain as to when the licence had been terminated and a contract of lease entered into and what were the terms of the lease as alleged by the landlord and whether the rules of the local authority permitted use of the premises for non-residential purposes. The High Court had dismissed the contention that the landlord had other suitable accommodation by an observation that the Controller had rightly come to the conclusion that the premises in which the landlord was residing belonged not to the landlord but to his brother. This approach was unjustified because the question was not whether the landlord was the owner of the premises occupied by him but the substantial question was in what right he was occupying it for a period extending over 7 years and how it had become imperative for him to vacate the same. [530 F-H; 531 A-H]

2. The contention that the non obstante clause in sub- s. (7) of s. 25B excludes the application of sub-s. (2) of s. 37 but not of sub-s.(l) of 8. 37 and therefore it was obligatory for the Controller to not only hear the landlord but examine evidence at the stage of granting or refusing to grant leave to contest cannot be accepted. Sub-s. (2) of s. 37 provides that subject to any rules that may be made under the Act, the Controller shall, while holding an inquiry in any proceedings before him, follow as far as may be, the practice and procedure of a Court of Small Causes. including the recording of evidence. The very fact that sub-s. (7) of s. 25B provides that while holding an inquiry in a proceeding to which Chap. IIIA applies, the Controller has to follow the practice and procedure of a Court of Small Causes including the recording of evidence indicates the legislative intention of treating Chap. IIIA and especially s. 25B as a self-contained code and this conclusion is buttressed by the provision in sub-s. (1) of s. 25B which provides that every application by landlord for recovery of possession of any premises on the ground specified in cl. (e) of the proviso to s. 14(1) shall be dealt with in accordance with the procedure specified in s. 25B. That is why sub-s. (7) of s. 25B opens with a non obstante clause. Any other section, including sub-s. (t) of s 37 prescribing procedure for disposal of an application covered by sub-s. (l) of s. 25B is therefore excluded. The exclusion of s. 37(1) also necessarily follows from the provision contained in sub-s. (10) of s. 25B which makes it clear that the procedure prescribed for holding. an inquiry consequent upon the granting of leave to contest shall be the same as required to be followed by the Controller for disposal of applications. Sub-s. (10) of s. 25B operates to bring ins 37(1) after leave to contest is granted. If sub-s. (1) of s. 37 were to govern all proceedings including the application for leave to contest the proceedings, both sub-s. (7) and sub-s. (10) of s. 25B would be rendered redundant. [525 C; 524 E-F; 526 A-B; 525 A-B; 525 E-F-H]

3. Neither the argument that the scope and ambit of sub-s. (S) of s. 25B of The Act in its comparison with O. XXXVII, r. 3 sub-r. (S) C.P.C. is no more res integra in view of the decision in Busching Schmitz (P) Ltd. v. P.T. Menghani & Anr. nor the interpretation of the observations therein to the effect that the scope for granting leave under sub-s. (S) of s. 25B is narrower than the one under o. XXXVII, r. 3 can be accepted. It is not clear from the decision whether the Court took note of the whole of the re- structured r. 3 or it was keeping in view the unamended r. 3 of o. XXXVII. The provisoes to o. XXXVII, r. 3 make it clear that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is 503

frivolous or vexatious. On the other hand, sub-s. (S) of s. 25B makes it obligatory upon the Controller, by use of mandatory language, to give leave if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for recovery of possession. Under o. XXXVII, r. 3, defence has to be substantial before leave can be obtained. Mere disclosure of facts is the sine qua non under sub s. (S) of s. 25B. Further, the Court can grant conditional leave or leave limited lo the issue under O. XXXVII, r. 3; no such power is conferred on the Controller under sub-s. (S) of s. 25B. Assuming that o. XXXVII, r. 3 (S) confers wider discretion on the Court that, by mere comparison, cannot cut down or narrow or limit the powercoupled with the duty conferred on the Controller under sub s. (S) of s. 25B.

1. (a) There is a definite public purpose behind enactment of Chap. IIIA and sub-s. (S) of s. 25B must be construed in a sense which would carry out that purpose. S. 14A was enacted to ensure that all government servants to whom residential accommodation had been allotted by the Government vacated such accommodation if they had any house of their own in the Union Territory of Delhi and the section conferred upon them the right to recover immediate possession of their own houses. Further, experience in the past had shown that landlords who were in bonafide requirement of their accommodation for residential purpose under cl. (e) of the proviso to sub-s. (1) of s. 14 were being put to great hardship due to the dilatory procedure of the suit. The object behind enactment of Chap. IIIA was that these two classes of landlords should not be at the mercy of law's delays but there should be a quick and expeditious remedy available to them against their own tenants. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under s. 14A. Chap. IIIA seeks to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. The words "if the affidavit filed by the tenant discloses such facts" used in sub-s. (S) of s. 25B must therefore take their colour from the context in which they appear. [533 A-D-E-F-H; 534 A; 536 D; 535 C-D; 535 A-B] Sarwan Singh v. Kasturi Lal, [1977] 2 S.C.R. 421, referred to.

(b) The Controller obviously cannot come to a decision as to whether or not leave to contest should be granted under sub-s. (S) of s. 25B without

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affording the parties an opportunity of hearing. The Controller must conform to the rules of natural justice. Once it is conceded that the landlord has a right to be heard, the Controller is bound to give him an opportunity to refute the facts alleged by the tenant in his affidavit filed under sub-s. (4) of s. 25B. The Controller must apply his mind not only to the averments made by the landlord in his application for eviction, but also to the facts alleged by the tenant in his affidavit for leave to contest as well as the facts disclosed by the landlord in his affidavit in rejoinder, besides the other material on record i.e., the documents filed by the parties in support of their respective claims, in order to come to a conclusion whether the requirements of sub-s. (I) of s. 25B are fulfilled. To ask Controller to confine himself only to the affidavit filed by the tenant is to ask him not to apply his mind in a judicial manner even if he feels that tho justice of the case so demands. The Controller must endeavour to resolve the competing claims of landlord and tenant to the grant or refusal of leave by finding a solution which is just and fair to both the parties. It is not that the proceedings initiated on an application by the landlord under s. 14(1) (e), or under s. 14A must undergo trial at two stages. Under sub-s. (S) of s. 25B, the Controller must prima facie be satisfied that the facts alleged by the tenant are such as would disentitle the landlord from obtaining an order for recovery of possession. The word 'disentitle' is a strong word, and the Controller must be satisfied that the tenant has such a defence as would defeat the claim of the landlord under s. 14 (1) (e) or under s. 14A. It cannot be that the Controller would set down the application for trial merely on perusal of the affidavit filed by the tenant without applying his mind to the pleadings of the parties and the material on record. If he finds that the pleadings are such as would entail a trial, then the Controller must grant the tenant leave to contest as the words "shall grant to the tenant leave to contest" in sub-s. (S) of s. 25B make the grant of leave obligatory. [536 G; 537 B-H; 538 A-B]

2. The scope of sub-s. (S) of s. 25B is restricted and the test of "triable issues" under O. XXXVII. r. 3 (5), C.P.C. is not applicable, as the language of the two provisions is different. The use of the word 'such' in sub- s. (5) of 6. 25B implies that the Controller has the power to limit the grant of leave to a particular ground. A tenant may take all kinds of pleas in defence. The whole object of sub-s. (5) of s. 25B was to prevent the taking of frivolous pleas by tenants to protract the trial. Where the tenant seeks leave to contest the application for eviction under s. 14(1) (e), or under s. 14A, he must file an affidavit under sub-s. (4) of s. 25B raising his defence which must be clear, specific and positive. The defence must also be bonafide and if true, must result in the dismissal of landlord s application. Defences of negative character which are intended to put the landlord to proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in terms of sub-s. (5) of s. 25B. The trial must be confined only to such grounds as would disentitle the landlord to any relief. [538 C-F]

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&

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 209 of 1981.

Appeal by special leave from the judgment and order dated the 8th December, 1980 of the Delhi High Court in Civil Revision No. 317 of 1980.

DESAI, J. A provision conferring power enacted to mollify slogans chanting public opinion of speedy justice, if not wisely interpreted may not only prove counter- productive but disastrous. And that is the only raison d'etre for this judgment because in the course of hearing at the stage of granting special leave Mr. D.V. Patel, learned counsel for the respondent straightway conceded that this is such a case in which leave to defend could never have been refused. Unfortunately, however, not a day passes without the routine refusal of leave, tackled as a run of mill case by the High Court in revision with one word judgment 'rejected', has much to our discomfiture impelled us write to this short judgment.

First the brief narration of facts. Respondent M/s.. Prem Deva Niranjan Deva Tayal (Hindu Undivided Family) through Prem Deva Tayal, constituted attorney of Niranjan Deva Tayal (landlord) moved the Controller having jurisdiction by a petition under section 14 (1) proviso (e) [for short s. 14 (e)'] read with section 25B of the Delhi Rent Control Act, 1958 ('Act' for short), for an order for recovery of possession of the premises being, front portion of premises bearing No. B-44, Greater Kailash Part I, New Delhi, on the ground that the premises were let out for residential purpose and are now required bona fide by the landlord for occupation as residence for himself and the members of his family dependent on him and that the landlord has no other reasonably suitable accommodation. To this petition he impleaded M/s. Precision Steel & Engineering Works (tenant), a firm and Shri B.K. Beriwala constituted attorney of the firm. Landlord alleged in his petition that 506

the premises in question were first given on leave and license and subsequently relationship of lessor and lessee was established and that the tenant is in possession since October 1, 1971. Landlord further alleged that he now requires the premises for himself and the members of his family consisting of himself, his wife and two school going children. He admitted that he has been employed in India since 1965 but was posted at Bombay in 1970 and returned to Delhi in 1972. He went to Saudi Arabia and has now returned to India. It was alleged that on May 1, 1974, he called upon the tenant to vacate the premises but the request has fallen on deaf ears. It was specifically alleged that as the landlord has now taken up a job and has settled down in Delhi and that he has no other suitable accommodation, and accordingly he bonafide requires possession of the demised premises for his personal occupation. It was alleged that M/s. Prem Deva Niranjan Deva Tayal (HUF) is the owner of the suit premises and Shri Niranjan Deva Tayal is the Karta of the HUF and second notice dated June 22, 1979 was given under instructions by the constituted attorney Prem Deva Tayal. Even though the landlord who sought possession of the premises for his personal requirement was in Delhi at the relevant time, i.e. in 1979, the petition was also filed through the constituted attorney and Niranjan Deva Tayal who seeks possession for his use being in Delhi and available is conspicuous by his absence throughout the proceedings On the petition being lodged the Controller directed summons ' to be served in the prescribed form. On service of the summons the tenant being a firm M/s. Precision Steel & Engineering Works, and its constituted attorney Shri B.K. Beriwala appeared and filed an affidavit seeking leave to contest eviction petition. In the affidavit tenant contended that respondent 1, i.e. M/s Precision Steel Engineering Works is the tenant and respondent 2 does not claim any interest in the premises in question in his personal capacity and ought not to have been impleaded as a respondent. While denying that there is any undivided family styled as Prem Deva Niranjan Deva Tayal it was contended that the petitioner is not entitled to file a petition under section 14 (1)(e) because the purpose of letting was not residential alone but combined purpose of residence-cum business. It was denied that the tenant entered the premises as a licensee and subsequently the contract of lease was entered into and it was submitted that the tenant entered the premises as tenant effective from September 13, 1971, and the lease was for residential-cum-commercial purpose. A specific agreement was pleaded that the tenant which is a partnership was entitled to use the premises for the residence of the director and/or partner as also for the office purpose. Reliance was placed on clause 6 of the License agreement, which was really and substantially according to the tenant a contract of lease. It was also alleged that since the inception of the tenancy the premises have been used both for residence and business purposes to the knowledge of landlord and local authorities and no objection has been raised in this behalf.

This appeal arises out of an order made by the High Court of Bombay affirming an order made by the Trial Judge in a summary suit filed under Order 37 of C.P. C. whereby the Trial Judge had issued summons for Judgment and made it absolute against the appellants and consequently passed a decree against them for a sum of Rs. 37,51,519.43 with interest and certain other incidental charges. A suit was brought by the respondents on the basis of bills of exchange in respect of which the appellants are the acceptors. M/s. Khanna Sales Corporation are the grawees of the bill who have Local Bill Discounting facility with the respondents. Under the said facility, M/s. Khanna Sales Corporation discounted the bills of exchange. The respondent bank made payments to M/s. Khanna Sales Corporation on the basis of the bills of exchange. Since the amounts under the Bills of Exchange were not paid and received by the respondent bank when they were presented within the stipulated time and since demand did not come for to despite notice of demand, the respondent bank filed a summary suit as aforesaid. Nine bills of exchange had been drawn by M/s. Khanna Sales Corporation. The appellants before us sought leave to defend themselves contending that the Bills of Exchange were executed without consideration as neither the goods were sold nor supplied in the transaction in question. The appellant alleged fraud, collusion and connivance between the officers of the respondent and M/s. Khanna Sales Corporation. The learning Trial Judge refused the leave to defend suit. On appeal, the Division Bench considered the matter and held that the undisputed position is that the appellants are the acceptors of the Bills of Exchange in question and that no goods were supplied or actually sold by M/s. Khanna Sales Corporation to the appellants and, therefore, the Bills of Exchange were not supported by consideration. Section 43 of the Negotiable Instruments Act saves the right of the holder in due courses like the respondent to claim the amount of Bill of Exchange. In certain other instances the Bills of Exchange had been negotiated through the bank without any difficulty and, therefore, Division Bench was of the view that there is no logic in the submission made on behalf of the appellants. If any fraud has been alleged that could be reflective on their conduct and, therefore, it would be too much for the respondent bank or their officers to be instrumental in perpetration of such a fraud by the appellants and M/s. Khanna Sales Corporation and, therefore, the appellants cannot escape their liability and responsibility under the Bills of Exchange in question. On that basis they took the view that pleas raised by the appellants were frivolous and have no substance and merits in their defence. In this appeal it is contended that what should be examined at the stage of grant of leave to defend is whether there was a real or a snam defence and whether the facts alleged by the appellants if established would be a good defence and the trial court should go into the question whether the facts alleged were true or not, as that situation would arise only after leave was granted and at the trial. That a condition as to security could be imposed if the Court was of the opinion that the defence was out forward with a view to prolong this suit.

The position in law has been explained by this Court in Santosh Kumar vs. Mool Singh (1958) SCR 1211. Milkhiram (India) Private Ltd. vs. Chaman Lal Bros. AIR 1965 SC. 1698 and Michalec Eng. & Mfg. vs. Bank Equipment Corporation AIR 1977 SC 577. The propositions laid down in these decisions may be summed up as follows:-

(a) If the defendant satisfies the Court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly food defence, the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is, if the affidavit disclosed that at the trial he may be able to establish a defence to the plaintiff claim, the court may impose conditions at the time of granting leave to defend- the conditions being as to time of trial or mode of trial but not as to payment into Court or furnishing security.

(d) If the defendant has no defence, or if the defence is sham or illusory or practically moonshine, the defendant is not entitled to leave defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine, the Court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into Court or otherwise secured.

In fact in identical matters on the file of the said High Court in summary suit No. 2963 of 1990 Dena Bank vs. M/s. Sunil Enterprises and summary suit No.1193 of 1989 Bank of India vs. Mahendra Sarabhai Choksi, leave to defend had been granted to defendants.

In those cases the circumstances arising are that the Bills of Exchange were accepted by the defendant even though they had already discharged earlier. Bills of Exchange as and when they were due and the bank had continued to pay out such large amounts of Bills of Exchange accepted by the party who is already a defaulter. It is also contended that some of the Bills of Exchange were mere secondary documents and, therefore, these matters require examination. It cannot be said that the defence raised by the appellants is totally defenceless or moonshine or illusory as noticed earlier in the course of this order. Therefore, the view taken by the High Court that appellants have absolutely no prima facie case, may not be correct. And in the circumstances, we allow appeals, set aside the order made by the Division Bench and the judge on the original side of the Bombay High Court and dismiss the Summons for Judgment, grant leave and direct unconditional leave to the defendant to defend the suit. Appeals, therefore, stand allowed accordingly.